                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                  FILED
                                                      U.S. COURT OF APPEALS
                     __________________________         ELEVENTH CIRCUIT
                                                           September 30, 2005
                            No. 04-14378                 THOMAS K. KAHN
                        Non-Argument Calendar                   CLERK
                     __________________________

                   D.C. Docket No. 01-00731-CR-ASG

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

LEONARDO FERNANDEZ,

                                                     Defendant-Appellant.

                    _____________________________

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

                          (September 30, 2005)

Before EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.

PER CURIAM:
      Leonardo Fernandez appeals his 16-month sentence imposed after he

violated his probation. Fernandez argues that the district court erred by increasing

his sentence beyond the applicable guideline range and violated his due process

rights by giving no notice of its intent to increase his sentence in this manner. No

reversible error has been shown; we affirm.

      Fernandez was convicted in 2002 of conspiracy to commit cargo theft, in

violation of 18 U.S.C. § 371. His guideline range was 10 to 16 months’

imprisonment; but the district court sentenced him to a “very lenient” two years’

probation. In 2003, Fernandez violated his probation by (1) conspiring to commit

cargo theft and possessing stolen property, in violation of 18 U.S.C. §§ 371, 659,

and (2) leaving the judicial district without permission. At the probation violation

hearing, the district court noted that the guideline calculation for Fernandez’s

probation violation was 4 to 10 months’ imprisonment, with a statutory maximum

5-year sentence. But the district court advised Fernandez that it was not going to

decide then whether to sentence him within the guideline range, it would consider

further discussion from the government on what the proper sentence should be,

and that the court’s only restriction in determining the sentence was the statutory

maximum. The court also noted that it initially had given Fernandez a “very




                                          2
lenient sentence”, and that Fernandez had committed a similar crime only a year

into his probation.

       At sentencing, the district court revoked Fernandez’s probation and

sentenced him to 16 months’ imprisonment. In determining that a departure

outside the guideline range was warranted, the court concluded (1) that, due to

Fernandez’s repeated criminal behavior, the guideline range did not reflect the

seriousness of the violations, and (2) that a 16-month sentence would have been at

the high end of the guidelines when the district court imposed the initial, lenient

sentence.

       We review for an abuse of discretion a district court’s decision to exceed the

sentencing range recommended in Chapter 7 of the Sentencing Guidelines. United

States v. Hofierka, 83 F.3d 357, 861-62 (11th Cir. 1996). And, as Fernandez did

not raise below his argument about the district court’s failure to give notice of its

intent to exceed the guideline range, we review that argument for plain error.1 See

United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).

       In fashioning a sentence after a defendant violates probation, a district court

is to consider, but is not required to follow, the guideline range set out in Chapter



  1
   Fernandez only requested that the district court sentence him within the recommended guideline
range.

                                               3
7 of the Sentencing Guidelines. See 18 U.S.C. § 3553(a)(4)(B); Hofierka, 83 F.3d

at 360-61 (stating that Chapter 7 merely is a policy statement, not a mandatory

guideline). As the Chapter 7 guidelines merely are advisory, “it is enough that

there is some indication the district court was aware of and considered them.”

Aguillard, 217 F.3d at 1320. Here, the district court indicated that it was aware of

and considered the guideline range. But the district court rejected that range and

imposed a higher sentence because Fernandez committed new, similar offenses

soon after he began his term of probation. The district court abused no discretion

in sentencing Fernandez beyond the Chapter 7 recommended range. And the

district court was not required to give notice that it was exceeding the Chapter 7

range. See Hofierka, 83 F.3d at 362-63 (stating that district court need not give

notice of intent to exceed Chapter 7 range because exceeding this range is not

departure).2 We see no error in the manner in which the district court sentenced

Fernandez after revoking his probation.

       AFFIRMED.




   2
    In any event, we note that, at the initial probation violation hearing, the district court advised
Fernandez that it would not sentence him within the guideline range at that time and that the court
was bound only by the statutory maximum five-year sentence.

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