             Case: 13-11781    Date Filed: 11/27/2013   Page: 1 of 4


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-11781
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:99-cr-00272-FAM-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

KEITH WHITTINGHAM,
a.k.a. Dennis Delary Brown,

                                                            Defendant-Appellant.

                         ________________________

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

                              (November 27, 2013)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
              Case: 13-11781        Date Filed: 11/27/2013   Page: 2 of 4


      Keith Whittingham appeals his 24-month sentence, imposed after the court

determined that he had violated the terms of his supervised release.

      After a conviction for illegal re-entry into the United States in violation of 8

U.S.C. § 1326(a), Whittingham was sentenced on January 6, 2000, to a term of

incarceration of 120 months and three years of supervised release. On December

7, 2010, during his supervised release term, Whittingham was arrested for

aggravated battery on an elderly person, a charge of which he was later acquitted in

state court. He spent two years in county jail before the commencement of his trial

on December 11, 2012. The state court entered a judgment of acquittal on

December 12, 2012.

      On December 27, 2010, the United States Probation Office filed a petition

for a warrant for the defendant’s arrest based on Whittingham’s violation of the

condition of his supervised release that he refrain from violation of the law. After

a supervised release violation hearing on March 14, 2013, the district court ruled

on April 16, 2013, that the defendant violated his supervised release. The district

court sentenced Whittingham to 24 months in federal prison without crediting him

for time served in state custody.

      On appeal, Whittingham argues that the district court erred by refusing to

credit him for time served in state custody prior to his acquittal. Whittingham

relies on U.S.S.G. § 5G1.3 (instructing courts on how to sentence a defendant


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subject to an undischarged term of imprisonment), and United States v. Descally,

254 F.3d 1328, 1333 (11th Cir. 2001) (vacating the defendant’s sentence because

the district court had failed to apply U.S.S.G. § 5G1.3, cmt. n.2, in order to account

for time served in state custody for a related crime). He also briefly mentions 18

U.S.C. § 3585 as support.

      A district court may revoke a defendant’s supervised release upon finding by

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

supervised release. 18 U.S.C. § 3583(e)(3). We review a federal sentence

imposed upon revocation of supervised release for reasonableness. United States

v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir. 2006) (per curiam). In reviewing

reasonableness, “[w]e look first at whether the district court committed any

significant procedural error and then at whether the sentence is substantively

reasonable under the totality of the circumstances.” United States v. Tome, 611

F.3d 1371, 1378 (11th Cir. 2010). And a prisoner seeking reduction of his

sentence pursuant to 18 U.S.C. § 3585(b) must exhaust administrative remedies

before petitioning for judicial review under 28 U.S.C. § 2241. United States v.

Williams, 425 F.3d 987, 990 (11th Cir. 2005) (per curiam).

      Whittingham challenges his sentence only for procedural unreasonableness,

specifically for the failure to reduce his sentence for time served pursuant to §

5G1.3. The applicable sentencing guideline, however, is U.S.S.G. § 7B1.4.


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U.S.S.G. § 7B1.3(b) (“In the case of a revocation of . . . supervised release, the

applicable range of imprisonment is that set forth in § 7B1.4.”). Whittingham’s

reliance on § 5G1.3 is misplaced because it applies to defendants who have

undischarged terms of imprisonment, U.S.S.G. § 5G1.3, and he had no

undischarged term of imprisonment. Whittingham’s Grade A violation and his

criminal history category of VI give him a 33–41 month range of imprisonment.

U.S.S.G. § 7B1.4. Because the statutory maximum for a supervised release

violation is two years where, as here, the offense that resulted in the term of

supervised release is a class C felony, 18 U.S.C. § 3583(e)(3), the term of

imprisonment imposed by the district court is appropriate and reasonable.

       In addition, we dismiss the § 3585(b) issue for lack of ripeness because

Whittingham has not exhausted his administrative remedies. Williams, 425 F.3d at

990.

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

affirm.

       AFFIRMED.




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