                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-14783         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JUNE 10, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                         D.C. Docket No. 1:06-cr-00146-WKW-SRW-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                versus

ALEX TYRONE MCNAIR,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Alabama
                                 ________________________

                                           (June 10, 2011)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

         Alex McNair appeals his 24-month above-guidelines sentence, imposed

under 18 U.S.C. § 3583(e)(3) after he tested positive for controlled substances in
violation of his supervised release. McNair argues that the district court abused its

discretion and that the sentence is substantively unreasonable. He asserts that his

violation of supervised release was the lowest offense level violation, and that the

seriousness of the violation and just punishment for it can be reflected without the

upward variance. Also, he argues that Probation did not recommend the maximum

sentence under the guidelines, so there is room within the guidelines to accomplish

the goal of promoting respect for the law. Additionally, McNair contends he

would be adequately punished and deterred with a within-guidelines sentence,

because such a sentence would cause him to miss his daughter’s graduation and let

down his family. Finally, he avers there is no evidence to show that he is any

threat to the public.

      A sentence imposed upon revocation of supervised release is reviewed for

reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.

2006). We review the reasonableness of a district court’s decision to exceed the

advisory sentencing range set forth in U.S.S.G. § 7B1.4 for an abuse of discretion.

United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006).

      “The review for substantive unreasonableness involves examining the

totality of the circumstances, including an inquiry into whether the statutory

factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,

                                          2
550 F.3d 1319, 1324 (11th Cir. 2008). “[T]he party who challenges the sentence

bears the burden of establishing that the sentence is unreasonable in the light of

both [the] record and the factors in section 3553(a).” United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005). “The weight to be accorded any given § 3553(a)

factor is a matter committed to the sound discretion of the district court.” United

States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotations and alteration

omitted). We will vacate a sentence only if “left with the definite and firm

conviction that the district court committed a clear error of judgment in weighing

the § 3553(a) factors by arriving at a sentence that lies outside the range of

reasonable sentences dictated by the facts of the case.” United States v. Irey, 612

F.3d 1160, 1190 (11th Cir. 2010) (en banc), petition for cert. filed, (U.S. Nov. 24,

2010) (No. 10-727) (quotation omitted).

      When sentencing a defendant upon revocation of supervised release

pursuant to 18 U.S.C. § 3583(e), a district court must consider: (1) the nature and

circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed to afford adequate deterrence to criminal

conduct, to protect the public from further crimes of the defendant, and to provide

the defendant with training, medical care, or correctional treatment; (3) the

Sentencing Guidelines’ range; (4) pertinent Sentencing Commission policy

                                          3
statements; (5) the need to avoid unwarranted sentencing disparities among

similarly situated defendants with similar records; and (6) the need to provide

restitution to victims. See 18 U.S.C. § 3583(e) (providing that the court must

consider the sentencing factors set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D),

and (a)(4)-(7) when sentencing a defendant upon revocation of supervised

release); 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(7)). If the original

sentence was a result of a downward departure, then an upward departure may be

warranted. U.S.S.G. § 7.B1.4 cmt. n.4.

      For a class C felony like McNair’s, a district court may not sentence a

defendant to more than two years’ imprisonment upon revocation of supervised

release. 18 U.S.C. § 3583(e)(3). The guidelines recommend a sentencing range of

8 to 14 months for a grade C violation of supervised release when the defendant

has a criminal history category of VI. U.S.S.G. §§ 7B1.1 and 7B1.4. We have

consistently held that the policy statements in Chapter Seven are merely advisory

and not binding, but the district court is nevertheless required to consider them.

Silva, 443 F.3d at 799.

      The district court did not abuse its discretion in sentencing McNair to 24-

months’ imprisonment. McNair had multiple previous probation and supervised

release violations and revocations, he had a long criminal history, he received a

                                          4
below-guidelines sentence for the underlying conviction, and he had a drug

problem that needed treatment, which he could receive while imprisoned. Under

the totality of these circumstances, the 24-month sentence was substantively

reasonable. Accordingly, we affirm.

      AFFIRMED.




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