                                                                   [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                       MARCH 28, 2012
                                            No. 11-12107
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                            D.C. Docket No. 1:02-cr-00043-MP-GRJ-5

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff-Appellee,

                                                versus

FREDDIE LEE MURPHY,

llllllllllllllllllllllllllllllllllllllll                       Defendant-Appellant.
                                      ________________________

                           Appeal from the United States District Court
                               for the Northern District of Florida
                                 ________________________

                                           (March 28, 2012)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         Freddie Murphy appeals the revocation of his supervised release, as well as

his 60-month sentence. He argues on appeal that the district court abused its
discretion by revoking his supervised release, and that his 60-month sentence is

both procedurally and substantively unreasonable.

                                          I.

      Murphy first contends that the government failed to prove by a

preponderance of the evidence that he committed aggravated battery with a deadly

weapon, the state criminal offense that formed the factual basis of one of his

supervised release violations.

      We review a district court’s revocation of supervised release for abuse of

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

2008). A district court’s findings of fact made at a revocation hearing are

reviewed for clear error, and we will reverse only if the record lacks substantial

evidence to support those findings. United States v. Almand, 992 F.2d 316, 318

(11th Cir. 1993); see United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir.

2007). A district court may revoke a defendant’s term of supervised release and

impose a prison sentence when it finds by a preponderance of the evidence that the

defendant violated a condition of his supervised release. 18 U.S.C. § 3583(e)(3);

United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006).

      Here, substantial evidence and testimony presented at the revocation

hearing, including Murphy’s plea of nolo contendere to aggravated battery charges

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in Florida state court, supported the district court’s determination that Murphy had

committed a violation of the terms and conditions of his supervised release.

Additionally, Murphy’s admission to a different violation, misdemeanor battery,

further supports the district court’s determination. The district court did not abuse

its discretion when it concluded that Murphy violated the terms of his supervised

release.

                                          II.

      Murphy further argues that his 60-month sentence is procedurally

unreasonable because the district court failed to determine the grade of his

violations, for purposes of calculating an advisory sentencing range, nor did it

indicate that had it thoroughly considered the Sentencing Guidelines and the

sentencing factors found in 18 U.S.C. § 3553(a). He also contends that because

strong evidence suggested that he had not committed one of the violations, and the

district court failed to consider the § 3553(a) factors, his sentence is also

substantively unreasonable.

      We review the sentence imposed upon the revocation of supervised release

for reasonableness. Velasquez Velasquez, 524 F.3d at 1252. A district court’s

decision to exceed the advisory sentencing range, as determined by Chapter 7 of

the Sentencing Guidelines, is reviewed for an abuse of discretion. United States v.

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

      In reviewing the reasonableness of a sentence, we conduct a two-step

review. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d

445 (2007). First, we ensure that the sentence was procedurally reasonable,

meaning the district court (1) properly calculated the guideline range, (2) treated

the guidelines as advisory, (3) considered the § 3553(a) factors, (4) did not rely on

clearly erroneous facts, and (5) adequately explained the chosen sentence. Id. In

explaining the sentence, the district court need not specifically discuss each of the

§ 3553(a) factors, if it is clear from the record that the district court properly

considered them. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).

      Once we determine that a sentence is procedurally sound, we examine

whether the sentence was substantively reasonable in light of the record and the

§ 3553(a) factors. Id. We must give due deference to the district court’s decision

that the § 3553(a) factors justify a sentencing variance. Id. We will remand for

resentencing only if we are 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. Pugh, 515 F.3d 1179, 1191

(11th Cir. 2008) (citation omitted). The party challenging the sentence has the

                                            4
burden of establishing that the sentence was unreasonable. Talley, 431 F.3d at 788.

      Chapter 7 of the Sentencing Guidelines governs violations of supervised

release and provides recommended ranges of imprisonment applicable upon

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

U.S.S.G. § 7B1.4). We have consistently held that the policy statements of

Chapter 7 are merely advisory and not binding. Id. at 799. However, the district

court is required to consider the statements, and when exceeding them, “must

normally indicate that it considered [them].” Id. Under the Sentencing

Guidelines, where there is more than one violation of the conditions of

supervision, the grade of the violation is determined by the violation having the

most serious grade. U.S.S.G. § 7B1.1(b). The guidelines provide that conduct

constituting a crime of violence, punishable by a term of imprisonment exceeding

one year, is a Grade A violation for which revocation of supervised release is

mandatory. U.S.S.G. § 7B1.1(a)(1). Under Florida law, aggravated battery is a

second-degree felony, punishable by a term of imprisonment not exceeding 15

years, and occurs when a person, “in committing battery . . . uses a deadly

weapon.” Fla. Stat. § 784.045(1)(a)(2).

      Murphy has not carried his burden of showing that his sentence is either

procedurally or substantively unreasonable. Contrary to Murphy’s contention, the

                                          5
district court revoked his supervised release on the basis of both the misdemeanor

battery and aggravated battery violations. Any failure by the district court to

expressly name Murphy’s aggravated battery offense a “crime of violence,” in

light of the circumstances of the violation that were established during the

revocation hearing, does not amount to procedural error. Additionally, Murphy’s

other claims of procedural unreasonableness are similarly without merit, as the

record reflects that the district court considered both the advisory sentencing

guidelines range and the § 3553(a) factors in determining Murphy’s 60-month

sentence.

      Murphy’s sentence is also substantively reasonable, in light of the § 3553(a)

sentencing factors and the facts and circumstances of his revocation offenses.

The district court’s above-guidelines sentence further reflects the Sentencing

Commission’s policy statement, which provides that “an upward departure may be

warranted” in a case, such as this, where the defendant’s “original sentence was

the result of a downward departure . . . as [a] reward for substantial assistance.”

18 U.S.C. § 3553(a)(5); U.S.S.G. § 7B1.4, comment. (n.4).

      Upon review of the record and consideration of the parties’ briefs, we affirm

the revocation of Murphy’s supervised release and his 60-month sentence.

      AFFIRMED.

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