               Case: 12-15447   Date Filed: 03/11/2014   Page: 1 of 7


                                                         [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-15447
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 4:95-cr-00123-WTM-GRS-16



UNITED STATES OF AMERICA,

                         Plaintiff - Appellee,

versus

JASON LAMAR CHISOLM,

                         Defendant - Appellant.

                           ________________________

                    Appeal from the United States District Court
                       for the Southern District of Georgia
                          ________________________

                                 (March 11, 2014)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

         Jason Lamar Chisolm appeals his 51-month sentence, which he received

upon revocation of his supervised release pursuant to 18 U.S.C. § 3583(e). In
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1995, Mr. Chisolm was sentenced to 200 months in prison and 60 months of

supervised release after pleading guilty to one count of conspiracy to possess with

intent to distribute, and distribution of cocaine base and cocaine hydrochloride in

violation of 21 U.S.C. 846. In 2012, he admitted to violating the conditions of his

supervised release by committing another state crime, possessing a controlled

substance and associating with persons engaged in criminal activity.

      Mr. Chisolm argues on appeal that his sentence was procedurally

unreasonable because the district court incorrectly applied a criminal history

category of VI, as calculated for the original underlying offense. Mr. Chisolm

asserts that the district court should have corrected this error and applied criminal

history category V instead.     Mr. Chisolm also contends that, because of the

mistaken criminal history categorization, he served more time for the original

underlying offense than was appropriate. He argues that, in the instant revocation

proceedings, the district court should have considered this excess time in prison as

a mitigating factor under 18 U.S.C. § 3553(a), and its failure to do so rendered his

51-month sentence substantively unreasonable.

      After reviewing the record and the parties’ briefs, we affirm Mr. Chisolm’s

sentence.




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                                          I

      “We review the sentence imposed upon the revocation of supervised release

for reasonableness.” United States v. Velasquez, 524 F.3d 1248, 1252 (11th Cir.

2008). “We review the reasonableness of a sentence under an abuse of discretion

standard.” United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). “The

burden of establishing unreasonableness lies with the party challenging the

sentence.” Id.

                                          II

      In reviewing the reasonableness of a sentence, we must first ensure that the

district court committed no significant procedural error, meaning the court properly

calculated the guideline range, treated the Guidelines as advisory, considered the §

3553(a) factors, did not select a sentence based on clearly erroneous facts, and

adequately explained the chosen sentence. See Gall v. United States, 552 U.S. 38,

51 (2007). “For sentences imposed upon revocation of supervised release, the

recommended sentencing range is based on the classification of the conduct that

resulted in the revocation and the criminal history category applicable at the time

the defendant originally was sentenced to the term of supervision.” United States

v. Campbell, 473 F.3d 1345, 1348-49 (11th Cir. 2007). See also 18 U.S.C. §

3583(e)(3); U.S.S.G. §§ 7B1.1, 7B1.4. The commentary to § 7B1.4 states, in

pertinent part, that “[t]he criminal history category is not to be recalculated because


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the ranges set forth in the Revocation Table have been designed to take into

account that the defendant violated supervision.” § 7B1.4, cmt. n.1.

      Despite the foregoing, Mr. Chisolm nevertheless contends that the district

court erred in basing his present sentencing range on the criminal history category

applicable to him when he was sentenced for the original underlying charge. He

says this was error because that criminal history category was incorrectly

calculated. Specifically, he alleges that, at the time of his original sentencing, he

was incorrectly classified as a career offender, and this incorrect classification

resulted in a criminal history category of VI instead of V.

      We find no merit to Mr. Chisolm’s claim of procedural error, as we have

held that a defendant facing incarceration upon the revocation of supervised release

may not challenge the validity of his original sentence during the revocation

proceedings. See United States v. Almand, 992 F.2d 316, 317-18 (11th Cir. 1993).

In Almand, the defendant argued that he could not be sentenced following

revocation of supervised release because his sentence of supervised release for his

original crime was invalid, as he was not present at the time it was imposed. See

id. We held that challenges to the underlying sentence’s validity may be raised

only by collateral attack through a separate proceeding. See id. See also United

States v. White, 416 F.3d 1313, 1316 (11th Cir. 2005) (holding that a prisoner may

not challenge his underlying sentence, “for the first time on appeal from the


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revocation of supervised release,” and instead must bring a motion to vacate under

28 U.S.C. § 2255). Therefore, unless the underlying sentence has been vacated,

the district court should presume it is valid during the revocation proceeding. See

Almand, 992 F.2d at 317.

      Here, because Mr. Chisolm’s challenge to the underlying sentence was not

properly before the district court during the revocation proceeding, and it is

undisputed that Mr. Chisolm failed to successfully attack his underlying sentence

in the eighteen years since it was imposed, the district court correctly presumed

that the sentence—and the criminal history category calculation contained

therein—was valid. Accordingly, the district court did not abuse its discretion in

applying criminal history category VI. The court properly calculated the advisory

guideline range for imprisonment following revocation of supervised release, and

as Mr. Chisolm alleges no other grounds of error in the district court’s process, we

affirm his sentence as procedurally reasonable.

                                        III

      Having determined that the district court’s sentence is procedurally sound,

we next review the substantive reasonableness of the sentence. See Kuhlman, 711

F.3d at 1326. A district court is required to consider the factors set forth in §

3553(a) in order to determine a sentence following revocation of supervised

release. See 18 U.S.C. § 3583(e), (e)(3). Mr. Chisolm contends that his sentence


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is substantively unreasonable because the district court failed to meaningfully

consider his prolonged time in prison as a mitigating factor under § 3553(a)(1).

Specifically, he argues that the criminal history miscalculation prejudiced him by

adding approximately 100 months to his initial guideline range, thus requiring him

to serve more time in prison for the underlying crime. Mr. Chisolm contends that

the district court failed to give due consideration to this substantial mitigating

factor.

      “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. Clay, 483 F.3d 739,

743 (11th Cir. 2007) (internal quotation marks omitted), and “[w]e ordinarily

expect a sentence within the guideline range to be reasonable.” United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Unjustified reliance upon any of

the § 3553(a) factors may, however, indicate an unreasonable sentence. See United

States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006). An abuse of discretion may

also occur when the district court gives an irrelevant factor significant weight, fails

to consider a factor that was due significant weight, or commits a clear error of

judgment by balancing the proper factors unreasonably. See United States v. Irey,

612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).

      On this record, Mr. Chisolm has failed to meet his burden of establishing

that his sentence is substantively unreasonable. The district court’s sentence of 51


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months represented the lowest point of the applicable guideline range of 51 to 60

months. Moreover, although Mr. Chisolm argues that the district court failed to

give due consideration to the mitigating factors under § 3553(a)(1), the court

expressly weighed his arguments about his criminal history category in setting the

sentence, specifically noting that the 51 month sentence was well within the lower

guideline range of 46 to 57 months that Mr. Chisolm argued should have applied.

The district court even considered a mitigating factor Mr. Chisolm did not

emphasize: his passage of numerous drug tests during his period of supervised

release.

      The district court may have elected to weigh other factors, like the need for

deterrence and the need to protect the public, more heavily, but the decision

whether to do so was within its discretion. The record shows that the district court

did not commit a clear error in judgment in weighing the factors, nor did it single-

mindedly rely on Mr. Chisolm’s wrongdoings to the detriment of mitigating

factors.   Accordingly, we conclude that the district court did not abuse its

discretion in considering the factors set forth in § 3553(a), and we find Mr.

Chisolm’s sentence substantively reasonable.

                                        IV

      Mr. Chisolm’s sentence is affirmed.

      AFFIRMED.


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