                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               July 13, 2006
                         FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                         ____________________                    Clerk

                             No. 05-20411

                           Summary Calendar
                         ____________________


     UNITED STATES OF AMERICA

                Plaintiff - Appellee

          v.

     CLARENCE HUNTER

                Defendant - Appellant

_________________________________________________________________

          Appeal from the United States District Court
           for the Southern District of Texas, Houston
                         No. 4:98-CR-394
_________________________________________________________________

Before KING, WIENER, and DEMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-appellant Clarence Hunter appeals the twenty-four-

month prison sentence imposed by the district court following

revocation of the supervised release term attached to his

original sentence.     For the following reasons, we AFFIRM the

sentence imposed by the district court after Hunter’s revocation


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

                                  -1-
hearing.

               I.   FACTUAL AND PROCEDURAL BACKGROUND

     On December 10, 1998, defendant-appellant Clarence Hunter

(“Hunter”) pleaded guilty to a one-count indictment, charging him

with possession of cocaine with intent to distribute in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii).    The district court

sentenced Hunter to a sixty-three-month term of imprisonment, a

five-year term of supervised release, and a $100 special

assessment.   As part of the conditions of his supervised release,

Hunter was required to participate in a program, inpatient or

outpatient, for the treatment of drug and alcohol addictions, as

well as submit to drug testing as directed by his probation

officer.

     Hunter’s term of supervised release commenced on April 11,

2003.   Hunter’s probation officer, Bryan Demar (“Demar”),

periodically filed reports alleging violations of the conditions

of Hunter’s supervised release, three of which are relevant to

the instant appeal.   On April 7, 2004, Demar filed a report

alleging that Hunter had submitted urine specimens that tested

positive for cocaine on March 11 and 24.    Demar did not

recommended any adverse action at this time, which allowed Hunter

to remain in an outpatient drug treatment program.      The district

court concurred with this recommendation.    On June 9, 2004, Demar

filed another report alleging that Hunter had tested positive for



                                 -2-
cocaine on May 14.   Once again, Demar did not recommend any

adverse action in light of Hunter’s voluntary admission to a

residential drug treatment facility for a period of not less than

forty-five days, and the district court concurred with this

recommendation.   On September 16, 2004, Demar filed yet another

report alleging that Hunter had again tested positive for cocaine

on August 2 and had failed to participate in drug treatment as

directed.   Demar did not recommend any adverse action in light of

Hunter’s voluntary admission to a drug treatment facility for a

period of not less than ninety days, and the district court again

concurred with this recommendation.

     On April 27, 2005, Demar filed a Petition for Warrant or

Summons for Offender Under Supervision, which cited the earlier

reports and alleged that Hunter had again violated the terms of

his supervised release in the following two ways: (1) submitting

urine specimens that tested positive for cocaine on March 31 and

April 9 and admitting to usage of cocaine before each failed

test; and (2) failing to participate in the Bonita House of Hope

Residential Substance Abuse Program after being terminated for

urinating on the property outside of his assigned cottage in

public view.   The district court granted the warrant, and Hunter

was arrested on May 4, 2005.

     The district court conducted a revocation hearing on May 13,

2005.   Hunter pleaded true to the first allegation, which related

to the failed drug tests, but he qualified his plea by stating

                                -3-
that the two positive urine samples were the result of a single

instance of cocaine use.   The government disagreed and indicated

that it had a witness who was prepared to testify that there were

two distinct instances of drug use.    Hunter pleaded not true to

the second allegation because he did not believe that his

termination from the drug facility constituted a violation of his

condition to participate in drug treatment.

     During the hearing, Demar testified that Hunter admitted to

separate instances of cocaine use before each failed drug test

mentioned in the first allegation.    Demar and Bonita House

Director Tyrone Evans also testified about the public urination

episode that resulted in Hunter’s termination from the drug

facility for being disrespectful and failing to comply with the

rules of the facility.   Testifying on his own behalf, Hunter told

the court about his cocaine problem dating back to the 1960s and

admitted to using the drug during his supervised release term,

particularly in March 2005.   He maintained, however, that he did

not use cocaine before every failed drug test.    He also attempted

to explain the public urination incident as being the result of

an urgent need and a lack of access to available indoor restrooms

at the time.

     Upon completion of the witness testimony, the district court

concluded that both allegations were true, specifically finding

that there had been separate instances of drug use underlying

each failed test.   The court then permitted counsel for the

                                -4-
defendant and government to make arguments about the appropriate

sentence to impose.   Hunter’s counsel argued that his client was

making an effort to address his drug problem and deserved another

chance before the court revoked his supervised release.   He

alternatively requested a sentence at the bottom end of the

Sentencing Guidelines range with no additional supervision.      The

government disagreed, citing the multiple occasions in which

Hunter had violated the conditions of his supervised release and

his failure to be forthright about the purportedly separate

instances of cocaine use underlying the first allegation.

Accordingly, the government urged the court to sentence Hunter to

twenty-four months in prison with access to the drug treatment

programs provided by the Bureau of Prisons, followed by no

additional period of supervised release.

     After a brief colloquy with Hunter about his repeated

violations of the conditions of his supervised release, the

district court imposed its sentence.

     I’ve   reviewed   the   supervised   release   revocation
     worksheets prepared by the probation office.          The
     statutory term of imprisonment allowable pursuant to 18
     United States Code, Section 3583[(e)] is 3 years.
     According to the Chapter 7 computations in United States
     Sentencing Guidelines Section 7B1.4, the revocation
     imprisonment range for a criminal history category of II
     and a Grade C violation is 4 to 10 months.
          After considering the Chapter 7 policy statements,
     it is the judgment of this Court that the defendant
     Clarence Hunter’s term of supervised release in Cause No.
     4:98-Criminal-394 is revoked.    Mr. Clarence Hunter is
     sentenced to the custody of the Bureau of Prisons for a
     term of imprisonment of 24 months.
          The Court recommends no supervised release to

                                -5-
     follow. The special assessment originally imposed has
     already been paid. The defendant is hereby committed to
     the custody of the United States Bureau of Prisons to be
     imprisoned for a total term of 24 months.            This
     revocation sentence is imposed pursuant to the Chapter 7
     policy statements and addresses the sentencing objectives
     of   punishment,   incarceration,   and   deterrence   in
     accordance with 18 United States Code, Section 3553(c).
     The defendant has been detained without bail since his
     arrest and is remanded to the custody of the United
     States Marshal.
          The defendant is advised that he does have the right
     to appeal this judgment pursuant to Rule 32(c)(5).

1 Supp. R. at 50-51.    Hunter timely appealed his sentence on May

16, 2005.

                           II.   DISCUSSION

     Hunter challenges the district court’s imposition of a

sentence in excess of the advisory range of four to ten months

applicable for his violation of supervised release pursuant to

the policy statement in U.S. SENTENCING GUIDELINES MANUAL § 7B1.4(a)

(2005) (providing a table of advisory imprisonment ranges upon

revocation of supervised release based on the grade of violation

and criminal history category of the defendant at the time of the

original sentence).    More specifically, Hunter argues that the

district court did not sufficiently articulate its reasons for

departing from this advisory range with respect to the relevant

sentencing factors under 18 U.S.C. § 3553(a).      See 18 U.S.C.

§ 3553(c)(2) (requiring the sentencing court to state “the

specific reason for the imposition of a sentence different from

that described” in the applicable guidelines or policy



                                  -6-
statements).   The government responds that the transcript from

the revocation hearing demonstrates that the sentence was

reasonable in light of the § 3553(a) sentencing factors.

     As an initial matter, the parties disagree about the

appropriate standard of review to apply to the instant matter.

Because the district court sentenced Hunter after the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (2005),

Hunter contends that this court should review the sentence for

reasonableness.   See United States v. Duhon, 440 U.S. 711, 714

(5th Cir. 2006); United States v. Smith, 440 U.S. 704, 706 (5th

Cir. 2006).1   The government argues, however, that this court

should review only for plain error because Hunter failed to

object to his sentence at the conclusion of the revocation

hearing.   See United States v. Gonzales, 250 F.3d 923, 930 (5th

Cir. 2001).2

     The court, not the parties, determines the proper standard

of review to guide our analysis.      United States v. Vonsteen, 950

F.2d 1086, 1091 (5th Cir.) (en banc), cert. denied, 505 U.S. 1223


     1
        In reviewing a sentence for reasonableness, we assess
whether the statutory sentencing factors under 18 U.S.C.
§ 3553(a) support the sentence. Duhon, 440 F.3d at 715.
Although a court should articulate fact-specific reasons for its
sentence, we recognize that the court need not make a “checklist
recitation” of the sentencing factors. Smith, 440 F.3d at 707.
     2
        In reviewing for plain error, we may correct forfeited
errors only if (1) there is an error, (2) that is clear or
obvious, and (3) that affects the defendant’s substantial rights.
Gonzales, 250 F.3d at 930 n.10.

                                -7-
(1992).    In United States v. Hinson, this court affirmed a

revocation sentence, noting that “the concerns that led the

Supreme Court to hold that mandatory sentencing guidelines

violated the Sixth Amendment do not exist with regard to

sentences imposed when supervised release is revoked.”    429 F.3d

114, 117 (5th Cir. 2005).    The Hinson court, however, expressly

declined to decide “whether the ‘plainly unreasonable’ standard

in subsection 3742(a) continues to apply to sentences imposed

upon revocation of supervised release or whether Booker’s

‘unreasonableness’ standard governs” because the sentence

“passe[d] muster under either and was not imposed in violation of

law.”    Id. at 120.   Similarly, we need not decide the precise

issue of whether plain-error review applies based on Hunter’s

alleged failure to preserve his challenge in the district court

because we conclude that his sentence satisfies the more exacting

reasonableness inquiry under Booker.     See United States v.

Hidalgo-Peralta, 166 F. App’x 762, 763 (5th Cir. 2006) (citing

Hinson and declining to decide whether the proper standard of

review was plain error or reasonableness because the sentence

imposed after revocation was “proper under either standard”).3

     3
        In any event, it appears that Hunter preserved his
challenge to the sentence by requesting that the district court
not revoke his supervised release or, in the alternative, impose
a sentence at the low end of the Guidelines range of four to ten
months. See Hidalgo-Peralta, 166 F. App’x at 763 (noting,
without deciding the issue, that the defendant “appear[ed] at
sentencing to have preserved this issue by requesting a
concurrent sentence”).

                                  -8-
     Upon our review of the record, we are abundantly satisfied

that the district court took into account the relevant sentencing

factors under 18 U.S.C. § 3553(a) and the advisory imprisonment

range under the policy statement in § 7B1.4 of the Sentencing

Guidelines before imposing a term of twenty-four months in prison

without any additional supervised release.   First, as the

district court correctly noted, the statutory maximum sentence

upon revocation of a term of supervised release is three years in

prison if the underlying offense is a class B felony.4     See 18

U.S.C. § 3583(e)(3).   Hunter’s sentence therefore fell below the

applicable statutory maximum.   We have routinely upheld

revocation sentences in excess of the advisory range but within

the applicable statutory maximum with respect to the underlying

offense.   See, e.g., United States v. Jones, No. 05-30665, 2006

WL 1519458, at *1 (5th Cir. May 25, 2006); United States v.

Boykin, No. 05-50704, 2006 WL 616031, at *1 (5th Cir. Mar. 13,

2006); United States v. Green, 162 F. App’x 283, 284 (5th Cir.

2006) (“The policy statements applicable to probation revocations

are advisory only and do not contravene the rule in Booker or the

Sixth Amendment.”).

     Moreover, after listening to witness testimony and reaching

a decision about the allegations, the district judge engaged in a

     4
        Indeed, Hunter does not dispute that the applicable
statutory maximum term of imprisonment qualified his underlying
drug offense as a Class B felony. Compare 21 U.S.C.
§ 841(b)(1)(B)(ii) with 18 U.S.C. § 3559(a)(2).

                                -9-
colloquy with Hunter about his repeated failures to abide by the

conditions of his supervised release--specifically focusing on

Hunter’s apparent unwillingness to seriously commit to his

rehabilitation5--before announcing the sentence.   See 18 U.S.C.

§ 3553(a)(1) (instructing the court to take into account “the

nature and circumstances of the offense and the history and

characteristics of the defendant” in determining the appropriate

sentence); cf. United States v. Magwood, 445 F.3d 826, 830 (5th

Cir. 2006) (affirming a two-year sentence imposed after a

revocation hearing, despite an advisory range of four to ten

months under § 7B1.4 of the Sentencing Guidelines, where the

district court took the defendant’s “several opportunities to

reform” his drug problem into consideration).   Furthermore, as

     5
        More specifically, the district court said the following
to Hunter during the revocation hearing.

          When Mr. Demar tells you, If you don’t get with the
     program, you’re going back to jail, . . . . you view that
     as him being overbearing and mean to you and so it’s his
     fault, not your fault.
          So I don’t really think that you will ever -- and no
     matter how many classes you go to, no matter how well you
     participate -- I’m sure you do.        I’m sure you do
     participate but there are two things going on. Number
     one, it’s somebody else’s fault, and, number two, I’m
     smarter than the rest of these people. And you are. You
     probably are smarter, but the point is, you’re never
     going to get anything out of the program unless you get
     rid of those attitudes. . . . So I don’t think it will do
     you any good for me to send you to any program, because
     you just don’t really -- deep down inside, you don’t
     really want to quit cocaine because you enjoy it and you
     admitted you enjoy it.

1 Supp. R. at 44-45.

                               -10-
the government correctly pointed out during the hearing, Hunter

would have access to any drug treatment programs offered by the

Bureau of Prisons during his period of incarceration.6    See

United States v. Pena, 125 F.3d 285, 288 (5th Cir. 1997) (noting

that the district court’s consideration of drug rehabilitation

while serving a revocation sentence in prison is appropriate

under 18 U.S.C. § 3553(a)(2)(D)).     Therefore, based on our review

of the sentencing transcript, we conclude that the district court

adequately considered the relevant sentencing factors under

§ 3553(a) and reached a sentence that was reasonable in light of

the circumstances.

                        III.   CONCLUSION

     For the foregoing reasons, we AFFIRM the sentence imposed by

the district court after Hunter’s revocation hearing.




     6
        We also note that Hunter’s reliance on the Second
Circuit’s decision in United States v. Lewis, 424 F.3d 239 (2d
Cir. 2005), is misplaced. In Lewis, the government made no
sentencing recommendation that might have illuminated some of the
district court’s reasons for exceeding the advisory sentencing
range under the non-binding policy statements in the Sentencing
Guidelines. Id. at 242. After closely reviewing the record, the
court concluded that the district court had failed to state its
specific reasons for the sentence and remanded for resentencing.
Id. at 249. In contrast, the district court in the instant case
demonstrated due consideration of the relevant sentencing factors
under § 3553(a) before adopting the government’s sentencing
recommendation of twenty-four months in prison without additional
supervised release.

                               -11-
