                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            DEC 18, 2006
                             No. 06-12198                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 05-00274-CR-WS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DANIEL JASEN THRIFT,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                      _________________________

                           (December 18, 2006)

Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Daniel Jasen Thrift appeals his 97-month sentences for using a computer for

the coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b);

traveling in interstate commerce for the purpose of attempting to engage in sex

with a minor, in violation of 18 U.S.C. § 2423(b) and (e); and possessing a firearm

as a felon, in violation of 18 U.S.C. § 1922(g)(1) and (2). Specifically, Thrift

argues the district court either erred in applying an upward departure to his

sentence or that his non-guideline sentence was unreasonable. In addition, Thrift

argues his sentence to a life term of supervised release for his conviction of

possessing a firearm as a felon exceeds the three-year supervised release maximum

for that offense. For the reasons stated below, we conclude the district court

correctly calculated the Guidelines range and imposed a reasonable sentence. The

district court did, however, err when imposing a life term of supervised release for

Thrift’s conviction of possessing a firearm as a felon.

                                 I. DISCUSSION

A.    Upward Departure or Variance

      Thrift first argues to the extent the district court granted an upward departure

pursuant to the Guidelines, the district court erred as a matter of law. We review

the calculation of the Sentencing Guidelines de novo. United States v. DeVegter,

439 F.3d 1299, 1303 (11th Cir. 2006).



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      The district court did not grant an upward departure, but rather varied from

the Guidelines range based on the specific facts of this case. In United States v.

Eldick, we noted that the district court’s sentence was not based on an upward

departure, but was an exercise of its discretion. 443 F.3d 783, 788 n.2 (11th Cir.

2006). Two factors supported this conclusion. First, the district court “did not cite

to a specific guidelines departure provision.” Id. at 788. Second, the district court

judge stated “the guidelines did not ‘adequately take into account the severity of

the damage done by Mr. Eldick’” as the reason for the variance from the

Guidelines range. Id.

      Here, the Government admitted that no upward departure provisions applied

to Thrift, but the Government still sought an above-Guidelines sentence. The

district court agreed. At the sentencing hearing, the district court did not cite to

any upward departure provisions in the Guidelines. Instead, the district court noted

the Guidelines range was 60-63 months, but the facts as applied to the 18 U.S.C.

§ 3553(a) factors compelled it to sentence the Defendant above the Guidelines

range. The district court’s reliance on the § 3553(a) factors indicates it was using

its discretion to fashion a sentence outside the Guidelines range. Therefore, the

district court correctly calculated the Guidelines range at 60-63 months, and varied

from that range based on its discretion.



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B.    Reasonableness

      Next, Thrift argues alternatively that the district court’s variance from the

Guidelines range was unreasonable because it creates disparity among similarly

situated defendants. We review a defendant’s ultimate sentence for reasonableness

in light of the § 3553(a) factors. United Stats v. Winnegear, 422 F.3d 1241, 1246

(11th Cir. 2005). The district court is not required to explicitly consider each of

the § 3553(a) factors. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

Instead, indications in the record that the district court considered facts and

circumstances falling within the § 3553(a) factors will suffice. Id. at 1329–30.

The party challenging the sentence bears the burden of establishing the sentence is

unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      The record reflects that the district court carefully considered the § 3553(a)

factors and provided both an adequate explanation and a rational basis for its

determination that an above-Guidelines sentence was appropriate. The district

court cited specific facts and circumstances causing it to question whether the

Guidelines provided adequate deterrence in this case due to Thrift’s history of

engaging in activity similar to which he plead guilty. Moreover, Thrift failed to

adequately support his argument that the variance was unreasonable because he

cited no examples of similarly situated defendants being sentenced differently.



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Based on the above, the district court clearly considered the § 3553(a) factors and

imposed a reasonable sentence. We, therefore, affirm the district court’s 97-month

sentence.

C.    Supervised Release

      Finally, Thrift argues the district court erred when it imposed a life term of

supervised release for possession of a firearm as a felon because the maximum

term for supervised release for possession of a firearm as a felon is three years,

according to 18 U.S.C. § 922(g).

      The district court erred by sentencing Thrift to a life term of supervised

release for possession of a firearm as a felon. In United States v. Rhodes, 177 F.3d

963 (11th Cir. 1999), this Court faced exactly the same situation. The defendant,

in Rhodes, was found guilty for one count of making a false compensation claim

and one count of mail fraud. Id. at 964–65. The district court sentenced Rhodes

to 12 months imprisonment and 3 years of supervised release on each count, with

the terms to run concurrently. Id. at 965. Rhodes appealed the three-year sentence

of supervised release on count one because the statute carried a one-year maximum

term. Id. at 967. This Court agreed that the term of supervised release for count

one exceeded the statutory maximum and vacated that portion of the sentence,

instructing the district court to amend its judgment to impose a one-year term of



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supervised release for that conviction. Id. at 968.

      We believe the same result is appropriate in this case. As in Rhodes, the

district court sentenced Thrift to identical terms of supervised release on all counts

with the terms to run concurrently. Also like Rhodes, one of the terms was higher

than the statutory maximum of the counts. See 18 U.S.C. § 3583(b)(2).

Accordingly, we vacate that portion of Thrift’s sentence and instruct the district

court to impose a three-year term of supervised release for that conviction.

                                 II. CONCLUSION

      Based on the above, we conclude the district court correctly calculated the

Guidelines and imposed a reasonable sentence based on an application of the §

3553(a) factors. We also conclude that the district court erred in sentencing Thrift

to a life term of supervised release for his conviction of possessing a firearm as a

felon. We, therefore, AFFIRM in part, VACATE in part and REMAND for the

district court’s imposition of a three-year term of supervised release for that

conviction.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART




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