                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JUNE 20, 2007
                               No. 06-14000                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 98-00140-CR-KMM

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                    versus

RYAN ELLIOTT,

                                                       Defendant-Appellant.


                         ________________________

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

                               (June 20, 2007)

Before ANDERSON, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Ryan Elliott appeals his sentence of 36-months imprisonment for violating
the terms of his supervised release, one mandatory conditions of which was that he

“refrain from any use of a controlled substance.”

      During a supervised release revocation hearing in January 2006, Elliott

admitted that he had failed three drug tests and that he had relocated without

informing his probation officer of his new address. Nevertheless, Elliott asked the

court not to revoke his supervised release. He argued that because his violations

were all related to his drug addiction, drug treatment would be the most effective

way remedy his violations. In response to Elliott’s request, the district court

offered Elliott a choice: (1) he could serve nine months imprisonment; or (2) he

could attend a ninety-day in-patient drug treatment program, to be followed by

another two years of supervised release. The district court also warned Elliott that

if he chose the second option, any future violations of the terms of his supervised

release would result in a revocation of his supervised release and a prison sentence

of up to five years, which was the statutory maximum. Elliott chose the second

option.

      On April 7 and April 17, 2006—less than two months after Elliot completed

his drug treatment program—he tested positive for marijuana. In July 2006, he

appeared before the same district court judge who had warned him about the

consequences of further violations of the terms of his supervised release. Although



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Elliott asked for a sentence within the advisory sentencing guidelines range of 3 to

9 months imprisonment, the court reminded Elliott that it had previously discussed

with him the consequences of another violation, and it sentenced him to 36-months

imprisonment, to be followed by 24 months of supervised release. When the

district court asked for objections, Elliott’s attorney responded as follows: “Your

honor, we would object on the grounds that it is an unreasonable sentence.”

      On appeal, Elliott makes two contentions: (1) that his sentence is “invalid”

because the district court did not explicitly acknowledge the factors set forth in 18

U.S.C. § 3553(a) when it issued his sentence; and (2) that his 36-month sentence is

an unreasonable punishment for his violations.

      Because Elliott did not object to the district court’s failure to explicitly

announce that it had considered the factors in § 3553(a) when it sentenced Elliott,

our review is only for plain error. See United States v. Aguillard, 217 F.3d 1319,

1320 (11th Cir. 2000). Plain error exists where (1) there is an error, (2) that is

plain, and (3) that affects substantial rights. United States v. Williams, 445 F.3d

1302, 1308 (11th Cir. 2006). To affect a defendant’s substantial rights, the error

“must have affected the outcome of the district court proceedings. The standard

for showing that is the familiar reasonable probability of a different result

formulation, which means a probability sufficient to undermine confidence in the



                                           3
outcome.” United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005)

(quotation marks and citations omitted).

      Even if we assume that the district court plainly erred by failing to state on

the record that it had considered the § 3553(a) factors, Elliott still has not shown

that his substantial rights were violated, because there is no reason to believe the

outcome would have been any different. At the January 2006 hearing, the district

court considered Elliott’s circumstances, offered him a choice between two

sentences, and warned him about the consequences that would follow from any

failure to abide the terms of the sentence that he chose. The sentence that Elliott is

now appealing is a direct result his failure to live up to the terms of his earlier

bargain, after being warned of the consequences. There is no reasonable

probability of different consequences had the district court explicitly considered

the § 3553(a) factors.

      Elliott’s second contention is that his sentence is unreasonably long. We

review a sentence imposed upon revocation of supervised release for

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

2006). Our “[r]eview for reasonableness is deferential,” Williams, 456 F.3d at

1363, and is guided by the factors set forth in § 3553(a). Id. “[T]here is a range of

reasonable sentences from which the district court may choose.” Id. “We will not



                                            4
substitute our judgment in weighing the relevant factors because ‘[o]ur review is

not de novo.’” Id. Upon finding by a preponderance of the evidence that a

defendant has violated a condition of his supervised release, a district court may,

under 18 U.S.C. § 3583(e), revoke the term of supervised release and impose a

term of imprisonment. Sweeting, 437 F.3d at 1107.

       Elliott has not convinced us that the district court’s sentence is unreasonable.

Although the 36-month sentence exceeds the advisory guidelines range, it is less

than the permitted statutory maximum sentence of five years, and it is a direct

result of Elliott’s failure to fulfill the terms outlined by the district court during his

previous revocation hearing, which had occurred just seven months earlier. Given

the facts of this case and our deferential standard of review, we cannot say that

Elliott’s sentence is unreasonable.

       AFFIRMED.




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