                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0507n.06
                             Filed: July 18, 2007

                                           No. 06-4509

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT     FOR     THE
v.                                                       )        NORTHERN DISTRICT OF
                                                         )        OHIO
LARRY HARRIS,                                            )
                                                         )            MEMORANDUM
       Defendant-Appellant.                              )              OPINION




       BEFORE: MARTIN and McKEAGUE, Circuit Judges; and GREER, District Judge.*

       PER CURIAM. On December 4, 2003, defendant Larry Harris began serving a three-year

term of supervised release after serving a 17-year, 6-month term of imprisonment for conspiracy to

possess cocaine with intent to distribute it. On November 9, 2006, at a supervised release violation

hearing, defendant admitted having violated the conditions of his supervised release by using

cocaine. The district court accepted defendant’s admission of guilt, terminated his supervised

release, and sentenced him to 10 months’ incarceration. Defendant now appeals this sentence

contending it represents an abuse of discretion. Defendant acknowledges he has a longstanding drug

problem and contends that his admission of abuse reflects his need and desire for treatment.

_________________________

      *Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 06-4509
United States v. Harris

Defendant contends the district court should have imposed a sentence of probation with remand to

a residential treatment program.

       A district court’s revocation of supervised release is reviewed for abuse of discretion. United

States v. Carr, 421 F.3d 425, 429 (6th Cir. 2005). A sentence imposed for violation of supervised

release will be affirmed “if it shows consideration of the relevant statutory factors and is not plainly

unreasonable.” Id. (quoting United States v. McClellan, 164 F.3d 308, 309 (6th Cir. 1999)).

       Inasmuch as defendant admitted he had repeatedly violated the conditions of his supervised

release by using cocaine, revocation of supervised release can hardly be deemed an abuse of

discretion. The district court’s order revoking supervised release does not include explicit

consideration of the policy statements set forth in the Sentencing Guidelines or the sentencing factors

listed in 18 U.S.C. § 3553. Yet, the 10-month sentence imposed in this case is undisputedly within

the applicable advisory guideline range of 8 to 14 months. It is therefore presumptively reasonable.

Rita v. United States, — U.S. — , 127 S.Ct. 2456, 2462-63 (2007); United States v. Cage, 458 F.3d

537, 540-41(6th Cir. 2006). Moreover, the sentencing court’s consideration of the probation

officer’s violation report warrants the presumption that the court considered the policy statements

and factors contained therein. Carr, 421 F.3d at 431-32; McClellan, 164 F.3d at 310; United States

v. Sloboda, 162 F. App’x 550, 552-53 (6th Cir. 2006) (unpublished). Defendant has made no

showing tending to rebut either of these presumptions.

       Considering that defendant had tested positive for cocaine use when he attempted to register

for residential treatment in September 2006, and was for that reason rejected from the program, the

district court’s decision to impose a term of incarceration rather than remand for continued

                                                 -2-
No. 06-4509
United States v. Harris

residential treatment is not plainly unreasonable. Defendant’s preference for a sentence of probation

and a second chance in the residential treatment program, though understandable, is no grounds for

finding that the district court committed a clear error of judgment or otherwise abused its discretion.

We find no error.

       The judgment of the district court is therefore AFFIRMED.




                                                 -3-
