                                                           [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                      MARCH 14, 2008
                                                    THOMAS K. KAHN
                              No. 07-13574
                                                         CLERK
                           Non-Argument Calendar
                         ________________________

                     D. C. Docket No. 99-00078-CR-UUB

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                    versus

ZIGMUND MARKEVITZ,

                                                     Defendant-Appellant.

                         ________________________

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

                              (March 14, 2008)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Zigmund Markevitz appeals the district court’s imposition of a 24-month
term of incarceration upon revocation of his supervised release, arguing for the

first time on appeal that (1) his sentence is unreasonable because the district court

did not consider the 18 U.S.C. § 3553(a) factors; and (2) the court increased his

punishment above the Guidelines range based on facts that were not charged in the

petition. For the reasons set forth below, we affirm.

                                I. BACKGROUND

      Markevitz pled guilty to conspiracy to commit mail fraud, 18 U.S.C. § 371,

and filing a false currency transaction report, 31 U.S.C. § 5324(a)(2). After his

term of supervised release began, Markevitz requested permission to travel to Peru

in order to seek medical treatment. On July 18, 2006, a magistrate judge granted

Markevitz’s request. The magistrate noted that the supervised release was not

terminated, and required that Markevitz (1) report to his probation officer monthly

by phone, and (2) submit monthly reports, including his current address and

updates from his treating physician, to his probation officer by mail.

      On February 7, 2007, the U.S. Probation Office petitioned the district court,

charging that Markevitz violated the terms of his supervised release by:

(1) leaving the judicial district without first securing permission of the probation

officer; and (2) failing to submit a truthful and complete written monthly report.

The petition set forth the following facts. On August 1, 2006, after he arrived in



                                           2
Peru, Markevitz reported to his probation officer by telephone. Markevitz

reentered the United States on November 27, 2006. On December 5, 2006,

Markevitz departed the United States to San Jose, Costa Rica, without first

securing permission from either the probation officer or the court. In his monthly

reports for December 2006 and January 2007, Markevitz reported his place of

residence as Salvador Dali 448, Lima, Peru, when evidence and statements made

by representatives of the United States Department of State, Bureau of Diplomatic

Security, indicated that this was false. The probation officer recommended that

Markevitz’s supervision be revoked, and the court issued a warrant for Markevitz’s

arrest.

          Before the hearing, Markevitz admitted that (1) he traveled to Costa Rica

without permission from the court or the probation officer; (2) his monthly reports

submitted for December 2006, January 2007, and February 2007 contained

“incorrect information”; and (3) he resided in Costa Rica from mid-December,

2006 to March 2, 2007.

          At the revocation hearing, the district court stated, “The Guidelines are three

to nine months. But Probation is recommending a term of imprisonment of 24

months. I can see why they would recommend that.”1 The government noted that


          1
         Markevitz was assigned a criminal history category of I in the presentence investigation
report, and his violation of the condition of his supervision constituted a Grade C violation.

                                                3
on the same day Markevitz was granted permission to travel to Peru, he appeared

before the Costa Rican Consulate and applied for residency there. The court

described Markevitz as a “chronic violator” of the United States criminal justice

system who “lack[ed] all credibility.” The court also noted Markevitz’s mental

health evaluations and diagnoses. After “carefully consider[ing] the statements of

the parties and the information contained in the violation report,” the district court

found that Markevitz “violated the terms and conditions of the supervised release,”

and it revoked the supervised release. The court then determined that “a sentence

within the guideline range is not appropriate” and sentenced Markevitz to 24

months’ imprisonment. The court asked Markevitz whether he objected to the

court’s findings of fact or to the manner in which the sentence was pronounced,

and Markevitz replied: “No, Your Honor.”

       Markevitz argues on appeal that the district court’s imposition of an 24-

month sentence upon revocation of his supervised release constituted reversible

error because there was no evidence presented to support the “increased

punishment.” More specifically, he argues that the government relied on

information used when Markevitz was initially sentenced and did not present any

evidence of new crimes. According to Markevitz, any fact relied upon by the court


U.S.S.G. § 7B1.1(a)(3)(B). Therefore, Markevitz’s recommended Guidelines range was three to
nine months. See U.S.S.G. § 7B1.4(a).

                                             4
to increase his sentence should have been charged in the petition, pursuant to

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Further, Markevitz contends that the court failed to consider the 18 U.S.C.

§ 3553(a) factors, failed to give any reason for its above-Guidelines sentence, and

failed to determine facts under the preponderance of evidence standard. Therefore,

Markevitz asserts, his sentence was unreasonable.

                           II. STANDARD OF REVIEW

      We review a sentence imposed for violating a condition of supervised

release for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07

(11th Cir. 2006).

                                  III. DISCUSSION

      The revocation of supervised release is authorized if the district court finds

by a preponderance of the evidence that the defendant violated a condition of his

supervised release. 18 U.S.C. § 3583(e)(3). When confronted with such a

violation, “[t]he court may, after considering the [3553(a)] factors . . . revoke a

term of supervised release, and require the defendant to serve in prison all or part

of the term of supervised release authorized by statute for the offense that resulted

in such term of supervised release . . . .” Id.

      Because both of Markevitz’s underlying offenses have a statutory maximum



                                            5
of five years’ imprisonment, the offenses are considered Class D felonies. See 18

U.S.C. § 3559(a)(4); see also 18 U.S.C. § 371; 31 U.S.C. § 5324(a)(2). For a Class

D Felony, 18 U.S.C. § 3583(e)(3) authorizes a term of imprisonment upon

revocation of not more than two years. See 18 U.S.C. § 3583(e)(3). Accordingly,

Markevitz’s Apprendi argument is without merit because his sentence did not

exceed the prescribed statutory maximum of two years’ imprisonment. See

Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63.

      The 24-month sentence that the district court imposed on Markevitz was

reasonable because Markevitz admitted to the violations in the probation officer’s

petition and the court considered the § 3553(a) factors. The district court explicitly

noted the recommended Guidelines range of three to nine months, and it

considered the § 3553(a) factors, though it did not explicitly mention each of them.

For example, the court considered Markevitz’s history and characteristics when it

discussed his (1) mental health issues, (2) age and medical condition, and (3) lack

of respect for the criminal system. Of particular importance to the court was the

need for the sentence to deter Markevitz, whom the court deemed a “chronic

violator,” from further fraudulent behavior. The court indicated that “a sentence

within the guideline range [was] not appropriate” because Markevitz had continued

to display dishonest behavior while on supervised release, including making false



                                          6
representations to the court that he required medical treatment in Peru while, at the

same time, applying for residency in another country, and “commit[ing] this

elaborate, fairly elaborate fraud when it comes to the monthly report.”

      Furthermore, the court’s imposition of an above-Guidelines sentence was

reasonable because the Guidelines range was not binding on the court, and the

record reflects that the court was aware of and considered the Chapter 7 policy

statements. See United States v. Campbell, 473 F.3d 1345, 1349 (11th Cir. 2007)

(per curiam) (“[B]ecause the Guidelines have always been advisory for sentences

imposed upon revocation of supervised release, it is sufficient that there be some

indication that the district court was aware of and considered the Guidelines, which

requires the court to consider the sentencing range established under the

Guidelines.”) (internal quotation marks and citations omitted).

                                IV. CONCLUSION

      Based upon the foregoing and our review of the record and the parties’

briefs, we affirm.

      AFFIRMED.




                                          7
