                                                 [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 08-16271                ELEVENTH CIRCUIT
                                                            JUNE 26, 2009
                        Non-Argument Calendar
                      ________________________           THOMAS K. KAHN
                                                              CLERK

                  D. C. Docket No. 94-00081-CR-HL-5

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

DARRELL TINSLEY,

                                                       Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Georgia
                    _________________________

                             (June 26, 2009)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
      While on supervised release as part of a sentence for a cocaine distribution

conviction, Darrell Tinsley committed armed robbery. The district court revoked

Tinsley’s supervised release, imposed a 24-month sentence, and ordered that the

sentence run consecutive to the 20-year sentence imposed by the state court for the

robbery offense. Tinsley appeals the district court’s sentence, contending that it is

unreasonable.

                                          I.

      Tinsley contends that his 24-month consecutive sentence is unreasonable

because the district court failed to consider or give adequate weight to several

factors under 18 U.S.C. § 3553(a) and to articulate reasons for his sentence under

§ 3553(c). The factors outlined in § 3553(a) include: (1) the nature and

circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence (A) to reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment for the offense, (B) to

afford adequate deterrence to criminal conduct, (C) to protect the public from

further crimes of the defendant, and (D) to provide the defendant with needed

educational or vocational training or medical care; (3) the kinds of sentences

available; (4) the Sentencing Guidelines range; (5) pertinent policy statements of

the Sentencing Commission; (6) the need to avoid unwarranted sentencing

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disparities; (7) and the need to provide restitution to victims. See 18 U.S.C. §

3553(a). Section § 3553(c) requires a district court to “state in open court the

reasons for its imposition of the particular sentence.”

      We review “the sentence imposed upon the revocation of supervised release

for reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252

(11th Cir. 2008). Reasonableness review is “deferential,” and “the party who

challenges the sentence bears the burden of establishing that the sentence is

unreasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

                                         II.

      We must first consider whether Tinsley’s 24-month consecutive sentence is

procedurally unreasonable based on his contention that the district court failed to

consider the § 3553(a) factors and to adequately explain the chosen sentence. See

Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007). The thrust of

Tinsley’s contention is that instead of explaining his sentence in terms of the §

3553(a) factors, the district court explained the sentence by relying solely on an

allegation in the revocation report that Tinsley continued to use cocaine while on

supervised release.

      In the petition to revoke his supervised release Tinsley was charged with

four violations: (1) committing a new violation of law by committing the offense

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of armed robbery; (2) possessing or using cocaine; (3) failing to submit to

uranalysis; and (4) failing to participate in residential drug treatment. At the

revocation hearing, Tinsley admitted to the armed robbery and the government

abandoned the other three violations. Based on that admission the district court

found that Tinsley had violated the terms and conditions of supervised release.

       During the revocation hearing, the district court referenced Tinsley’s

continued cocaine use. After the sentence was imposed, Tinsley’s attorney argued

that referring to that use was improper because Tinsley had not admitted to using

cocaine and the government had abandoned the three alleged violations from the

petition relating to that continued use. Tinsley’s attorney conceded that the

district court was free to consider the entire revocation report including the alleged

continued cocaine use for sentencing purposes, but objected to the statement of

that use on the record because it could later be interpreted as a factual finding.

The district court resolved the concern by retracting a statement it had made.1

Tinsley argues that after the district court’s statement about his ongoing cocaine

use is retracted from the record, there is nothing left to explain why his “extreme”

sentence is justified.


       1
          The retracted statement was: “ I also find an exception to the mandatory revocation
provisions of 18 U.S.C. § 3583(g) is not warranted based on Mr. Tinsley’s ongoing use of
cocaine . . .”

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      The record reveals, however, that the district court did adequately explain

how the sentence was supported by the § 3553(a) factors. Although Tinsley

correctly points out that the district court did not discuss four of the § 3553(a)

factors, the court was not required to discuss each factor. See Talley, 431 F.3d at

786. Nor was it required to “explicitly articulate that it had considered the §

3553(a) factors,” United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007)

although it did so here. See also United States v. Scott, 426 F.3d 1324, 1329 (11th

Cir. 2005) (explaining that the district court is not required “to state on the record

that it has explicitly considered each of the § 3553(a) factors or to discuss each of

the § 3553(a) factors”).

      Instead, a district court’s rationale is legally sufficient where the record

makes clear that it has considered the evidence and the arguments. Rita v. United

States, 551 U.S. 338, __, 127 S. Ct. 2456, 2469 (2007). Here, the district court

provided Tinsley with the opportunity to present mitigating argument at the

revocation hearing. The court heard Tinsley’s own statement and his attorney’s

comments about the nature and circumstances of the offense, the seriousness of

the offense, and the interests of deterrence. His attorney summarized: “Essentially

my argument, Your Honor, under all these factors is that [] Tinsley is going to be

punished enough by spending his 20-year sentence in the state system.”

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      In determining Tinsley’s sentence the district court consulted the sentencing

guidelines. Although Tinsley’s advisory guidelines range would have been 33–41

months based on a Grade A violation and a criminal history category of VI, that

range did not apply here because it would have exceeded the maximum term of

imprisonment authorized by statute. See U.S.S.G. § 7B1.4(b)(3)(A). The district

court thus imposed a sentence of 24 months, the maximum sentence permitted by

statute for the offense. The court instructed that the sentence was to run

consecutive to the 20-year sentence already imposed on Tinsley in state court.

The court also stated that “the sentence as imposed is an appropriate sentence in

this case, complies with the factors that are to be considered as set forth at 18

U.S.C. § 3553(a) and adequately addresses the totality of the circumstances.”

      The Supreme Court has explained that a lengthy discussion is not required

in the typical case, as long as the sentencing judge “set[s] forth enough to satisfy

the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” Rita, 551

U.S. at __, 127 S. Ct. at 2468. The district court has set forth enough to satisfy us.

Cf. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (explaining that a

district court’s statement that it had considered the defendant’s arguments and the

§ 3553(a) factors was “sufficient in post-Booker sentences”).

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                                         III.

      We next consider whether Tinsley’s sentence is substantively unreasonable

based on his contention that the district court failed to adequately weigh the §

3553(a) factors and the circumstances presented by his case. He argues that the

district court failed to properly weigh his character, the parsimony principle, and

the need to provide him with educational and vocational training. See 18 U.S.C. §

3353(a)(1), (a)(2)(C), (a)(2)(D). He also argues that his sentence was not a just

punishment for his offense. See 18 U.S.C. § 3553(a)(2)(A).

      In considering the substantive reasonableness of a sentence, “we may find

that a district court has abused its considerable discretion if it has weighed the

factors in a manner that demonstrably yields an unreasonable sentence.” United

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). In other words, if the

district court made a clear error in judgment in weighing the factors, we will

remand for re-sentencing. Id. Tinsley has not shown this to be such a case.

      We ordinarily expect that sentences that are within the guidelines range will

be substantively reasonable. See id. Tinsley’s sentence does not exceed the

bounds of the advisory guidelines range, see U.S.S.G. § 7B1.4, and none of

Tinsley’s arguments related to the § 3553(a) factors convinces us that the district

court made a clear error of judgment resulting in an unreasonable sentence.

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      Tinsley identifies four § 3353(a) factors that he asserts the district court

failed to properly consider. He argues that the district court failed to consider both

his character under § 3353(a)(1) and the need to provide him with educational or

vocational training under § 3553(a)(2)(D). Tinsley offers no argument for how

those factors would make his sentence a clear error of judgment, but simply points

out that the district court did not address them specifically. As we have already

explained, however, the district court was not required to address each factor. See

Talley, 431 F.3d at 786.

      Tinsley also argues that the district court failed to adequately consider two

other factors: (1) whether a lower sentence would have adequately protected

society under § 3553(a)(2)(C) and (2) whether the maximum statutory sentence

here was inconsistent with the “just punishment for the offense” provision of §

3553(a)(2)(A). As to both, he emphasizes that the conduct underlying the

revocation violation, the armed robbery, already resulted in a 20-year state

sentence of imprisonment, and argues that an additional 24-month consecutive

sentence is unreasonably harsh. This argument fails.

      First, the record demonstrates that the district court considered this

argument at the time of sentencing because Tinsley raised it at the revocation

hearing in arguing for a concurrent sentence, although in the context of other

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factors. Second, the district court’s decision to impose a 24-month consecutive

sentence is consistent with the maximum term of imprisonment authorized by

statute and the policy statement in the sentencing guidelines recommending a

consecutive term of imprisonment. See 18 U.S.C. § 3553(a)(4), (5); U.S.S.G. §§

7B1.4(b)(3)(A), 7B1.3(f) (“Any term of imprisonment imposed upon the

revocation of . . . supervised release shall be ordered to be served consecutively to

any sentence of imprisonment that the defendant is serving, whether or not the

sentence of imprisonment being served resulted from the conduct that is the basis

of the revocation of . . . supervised release.”).

      Tinsley’s 24-month consecutive sentence was procedurally and

substantively reasonable.

      AFFIRMED.




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