[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-12658

Non-Argument Calendar

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D.C. Docket No. 1:07-cr-00046-CG-C-3

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

HARRY CLINTON CARTER, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

________________________

(April 19, 2016)

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Before WILSON, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM: 

Harry Clinton Carter appeals his 24 month sentence, imposed after the 

district court revoked his supervised release, pursuant to 18 U.S.C. § 3583(e)(3). 

He argues that the district court issued a procedurally and substantively 

unreasonable sentence. After a thorough review of the record and the parties’ 

briefs, we affirm Carter’s sentence. 

I. BACKGROUND

Carter pled guilty to one count of possession of crack cocaine with intent to 

distribute and was sentenced to 43 months’ imprisonment and three years’ 

supervised release. The conditions of his supervised release required him to 

participate in a drug treatment program, submit to drug tests, refrain from using 

controlled substances, and refrain from associating with anyone engaging in 

criminal conduct. 

Carter commenced his supervised release in 2011. In March 2012, Carter 

tested positive for cocaine and marijuana and admitted to using those drugs. His 

probation officer placed him in group counseling as a result. The following 

September, Carter was charged with criminal mischief and domestic violence after 

getting into an argument with his girlfriend. Consequently, the district court 

ordered that Carter submit to electronic location monitoring. One month after that, 

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Carter again tested positive for cocaine, and his probation officer placed him in a 

residential drug treatment program. 

Unfortunately, Carter continued to struggle with his drug addiction. Around 

the end of March 2013, he left the area monitored by his electronic monitoring 

device and tested positive for cocaine once more. After Carter waived his right to 

a revocation hearing and admitted to having violated the terms of his supervised 

release on numerous occasions, the district court revoked his supervised release 

and sentenced him to eight months’ imprisonment followed by 28 months’ 

supervised release. 

After being released, Carter once again tested positive for cocaine in January 

2015, but he denied having used any illegal drugs. The district court nevertheless 

allowed him to remain on supervised release, and his probation officer referred him 

to an outpatient substance abuse treatment program. Carter’s probation officer 

warned him that this was his final opportunity to receive substance abuse 

treatment. 

The treatment was, regrettably, unsuccessful. In April 2015, Carter tested 

positive for cocaine and failed to attend his outpatient treatment sessions. He also 

failed to report to, and ignored calls and messages from, his probation officer. The 

outpatient substance abuse program eventually discharged him for failing to attend 

treatment sessions. Carter’s probation officer reported Carter’s violations to the 

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district court and asked the court to revoke his supervised release. Considering the 

nature of Carter’s violation and his criminal history, Carter’s Violation Worksheet

calculated a Sentencing Guidelines range of four to 10 months’ imprisonment. The 

statutory maximum sentence was 24 months’ imprisonment.

Carter waived his right to a revocation hearing and admitted to the probation 

officer’s allegations. At his sentencing hearing, Carter described how he lost his 

job and consequently became unable to afford to pay for his car, housing, or phone. 

He explained that he failed to attend his treatment sessions because he was 

attempting to find a new job and lacked a means of transportation. He asked for a 

sentence within the range established by the Sentencing Guidelines. 

The district court revoked Carter’s supervised release. The court stated that 

Carter had exhibited a pattern of supervised release violations and that, despite his 

probation officer’s repeated attempts to assist him in treating his addiction, Carter 

had failed to complete his drug treatment program and to report to the probation 

officer. As a result, the court determined that a sentence within the range indicated 

by the “chapter seven provisions” of the Sentencing Guidelines was inappropriate 

because Carter was exhibiting the “same conduct” he had exhibited before his

previous revocation. Revocation Hr’g Tr. at 6 (Doc. 278).1

 The district court 

sentenced Carter to 24 months’ imprisonment, the statutory maximum. Carter 

 1 “Doc.” refers to the docket entry in the district court record in this case.

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objected that the court’s upward variance was unreasonable and filed a timely 

appeal. 

II. DISCUSSION

“Pursuant to 18 U.S.C. § 3583(e), upon finding that a defendant violated a 

condition of supervised release, a district court may revoke the term of supervised 

release and impose a term of imprisonment” after considering certain factors set 

forth in 18 U.S.C. § 3553(a). United States v. Velasquez Velasquez, 524 F.3d 

1248, 1252 (11th Cir. 2008). These factors include the nature and circumstances 

of the offense, the history and characteristics of the defendant, the need to afford 

adequate deterrence to criminal conduct, the need to protect the public from further 

crimes, the pertinent policy statements of the Sentencing Commission, the need to 

avoid unwarranted sentencing disparities, and the need to provide restitution to 

victims. 18 U.S.C. § 3583(e), 3553(a). When the district court determines that a 

variance from the guidelines range is appropriate, it must then consider the extent 

of the variance and ensure that there is a sufficiently compelling justification for it. 

United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

Reviewing the reasonableness of a sentence is a two-step process. “We 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.” Id. The party challenging the sentence bears the burden of 

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showing it is unreasonable in the light of the record and the relevant factors. Id. 

Carter contends that his sentence is both procedurally and substantively 

unreasonable. We address these arguments in turn. 

A. Procedural Reasonableness

“A sentence may be procedurally unreasonable if the district court 

improperly calculates the Guidelines range, treats the Guidelines as mandatory 

rather than advisory, fails to consider the appropriate statutory factors, selects a 

sentence based on clearly erroneous facts, or fails to adequately explain the chosen 

sentence.” United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). 

Carter contends that the district court committed two procedural errors. First, he 

argues that the district court failed to explain adequately the basis of his sentence. 

Second, he argues that the district court failed to calculate or otherwise explicitly 

reference the applicable Sentencing Guidelines range during his sentencing 

hearing. Neither argument merits relief. 

Carter is correct that a district court must explain its reasons for imposing a 

particular sentence. Rita v. United States, 551 U.S. 338, 356 (2007); 18 U.S.C. § 

3553(c)(1). This explanation, however, need not be exhaustive. Rather, an 

acknowledgement by the court that it has considered the defendant’s arguments 

and the factors listed in § 3553(a) will satisfy this requirement. United States v. 

Dorman, 488 F.3d 936, 938 (11th Cir. 2007). Moreover, “[t]he district court need 

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not state on the record that it has explicitly considered each factor and need not 

discuss each factor.” Id. We typically conclude that a district court failed to 

adequately explain a sentencing decision only “when the record contain[s] no 

evidence that the district court had considered, or the defendant had even raised, 

the applicability of any of the § 3553(a) factors.” United States v. Smith, 568 F.3d 

923, 928 (11th Cir. 2009). We conduct a de novo review of the sufficiency of a 

district court’s explanation of a defendant’s sentence, even if the defendant did not 

object before the district judge. United States v. Bonilla, 463 F.3d 1176, 1181 

(11th Cir. 2006).

We are satisfied that the district court’s explanation of its sentencing 

decision, although undeniably terse, fulfills this minimal requirement. The court 

heard and considered Carter’s arguments for why he should receive a sentence 

within the guidelines range. Carter’s counsel explained that Carter’s violations of 

his supervised release conditions largely stemmed from his loss of employment 

and his consequent inability to make car, rent, or phone payments. Carter himself 

expressed remorse and apologized for his conduct. 

Apart from considering Carter’s and his counsel’s presentations, the court 

also noted that Carter’s probation officer “did everything [he] could to help 

[Carter] get off . . . drugs” and that, while Carter “took advantage of that for a little 

while,” he eventually “went off the deep end” and not only “fail[ed] to participate 

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with the drug treatment program” but “fell out of contact with probation” as well. 

Revocation Hr’g Tr. at 6 (Doc. 278). The court then considered the advisory 

sentencing range, referencing the policy statements in the “chapter seven 

provisions” of the Sentencing Guidelines, and found the guidelines range

inappropriate because Carter was exhibiting “the same conduct” he had exhibited 

when the court revoked his supervised release two years earlier. Id. 

Although the district court never explicitly referenced the § 3553(a) factors, 

the record clearly demonstrates that the court weighed them, both in considering 

Carter’s arguments and in deciding that a variance was appropriate. Carter’s 

failure to attend his treatment program, inability or refusal to remain in contact 

with his probation officer, and consistent pattern of non-compliance with the terms 

of his supervised release all concern the nature and circumstances of his offenses, 

his personal history and characteristics, and the likelihood he would commit 

additional violations in the future. In other words, although the district court 

“fail[ed] to articulate specifically the applicability . . . of each of the section 

3553(a) factors, . . . the record demonstrates that the pertinent factors were taken 

into account.” Smith, 568 F.3d at 927. That is all the law requires. See Tome, 611 

F.3d at 1378-79 (affirming as sufficient a district court’s explanation that it was 

imposing an upward variance based on the defendant’s admission to repeated 

violations of his supervised release).

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We also reject Carter’s second procedural unreasonableness argument, that 

the district court failed to calculate any guidelines range. At sentencing, Carter 

objected that the district court’s “upward departure from the guideline range [was] 

unreasonable.” Revocation Hr’g Tr. at 7 (Doc. 278). This objection failed to 

challenge the procedural unreasonableness of Carter’s sentence. As a result, we 

review for plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th 

Cir. 2014). To prevail on plain error review, Carter must demonstrate “(1) that the 

district court erred; (2) that the error was plain; and (3) that the error affected his

substantial rights.” Id. (alterations and internal quotation marks omitted). “An 

error that affects substantial rights is one that affected the outcome of the district 

court proceedings.” United States v. Henderson, 409 F.3d 1293, 1308 (11th Cir. 

2005) (internal quotation marks omitted). “If all three conditions are met, [we then 

decide whether] the error seriously affect[ed] the fairness, integrity, or public 

reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631 

(2002) (internal quotation marks omitted).

“[A] district court should begin all sentencing proceedings by correctly 

calculating the applicable Guidelines range.” Gall v. United States, 552 U.S. 38, 

49 (2007). Although we have held in several unpublished decisions that a district 

court’s failure to state the applicable guidelines range at sentencing constitutes 

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procedural error,

2

we have never addressed the issue in a published decision. 

Thus, even if we assume that there was error here, Carter cannot demonstrate that 

the error was plain.

3

 See Vandergrift, 754 F.3d at 1309.

Significantly, even were we to determine that the district court committed 

plain error, Carter failed to establish that the error affected his substantial rights or

“the fairness, integrity, or public reputation of judicial proceedings.” Cotton, 535 

U.S. at 631 (internal quotation mark omitted). Carter does not argue that the 

probation office miscalculated his guidelines range, that he and his counsel were 

unaware of the applicable guidelines range, or that the district court was unaware it 

was applying a significant upward variance when sentencing him. To the contrary, 

it is clear from the record that defense counsel argued for and the court considered

and rejected the applicable guidelines range, even though the court never expressly 

stated what the range was. The court stated, “I therefore find that the chapter seven 

provisions, which I have considered, are inappropriate because this is the same 

conduct that we went through two years ago.” Revocation Hr’g Tr. at 6 (Doc. 

278). Indeed, Carter’s counsel asked for “a sentence within the guideline range,”

 2 See, e.g., United States v. Linkel, No. 15-10083, 2016 WL 384703, at *1 (11th Cir. Feb. 

2, 2016); United States v. Cruz, No. 14-15776, slip op. at 3 (11th Cir. Jan. 6, 2016); United 

States v. Valera, 622 F. App’x 876, 878-79 (11th Cir. 2015).

3 Carter points us to United States v. Campbell, but in that case it was impossible to 

discern from the record whether the district court considered the applicable guidelines range. 

473 F.3d 1345, 1349 (11th Cir. 2007). Here, in contrast, after defense counsel argued for “a 

sentence within the guideline range,” the court stated that it had considered “the chapter seven 

provisions” of the Sentencing Guidelines and deemed them inappropriate in Carter’s case. 

Revocation Hr’g Tr. at 4, 6 (Doc. 278).

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which further demonstrates that both counsel and the court knew the court was 

considering applying a variance. Id. at 4. And given Carter’s history of drug 

abuse and repeated non-compliance with the terms of his supervised release, it is 

hard to imagine that the resulting sentence would have been any different had the 

district court stated the guidelines range on the record. See Henderson, 409 F.3d at

1308. In sum, because Carter has failed to demonstrate the existence of any plain 

error that affected his substantial rights or the reputation of the judicial system, his 

procedural unreasonableness challenge cannot survive plain error review. 

B. Substantive Reasonableness

Having determined that the district court’s sentencing decision was 

procedurally sound, we next consider the substantive reasonableness of Carter’s

sentence under an abuse of discretion standard. Gall, 552 U.S. at 51. This 

standard reflects the due deference we give to district courts because they have an 

“institutional advantage in making sentencing determinations.” United States v. 

Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir. 2010) (internal quotation marks 

omitted). Thus, “[w]e may vacate a sentence only if we are left with the definite 

and firm conviction that the district court committed a clear error of judgment in 

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range 

of reasonable sentences dictated by the facts of the case.” Id. (internal quotation 

marks omitted). That we “might reasonably have concluded that a different 

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sentence was appropriate is insufficient to justify reversal.” Gall, 552 U.S. at 51. 

Moreover, we may not presume a sentence is unreasonable merely because it is 

outside the guidelines range. Id. “[I]t is only the rare sentence that will be 

substantively unreasonable.” United States v. Rosales-Bruno, 789 F.3d 1249, 1256 

(11th Cir. 2015) (internal quotation marks omitted).

A district court abuses its discretion and imposes a substantively 

unreasonable sentence if it “(1) fails to afford consideration to relevant [§ 3553(a)] 

factors that were due significant weight, (2) gives significant weight to an improper 

or irrelevant factor, or (3) commits a clear error of judgment in considering the 

proper factors.” Id. (internal quotation marks omitted). “The weight to be 

accorded any given § 3553(a) factor is a matter committed to the sound discretion 

of the district court . . . .” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 

2007) (internal quotation marks omitted). In imposing an upward variance, the 

district court may consider any information relevant to a defendant’s background, 

character, and conduct. See Tome, 611 F.3d at 1379.

Carter contends that his sentence of 24 months’ imprisonment was unduly 

harsh and greater than necessary to achieve the purposes for which revocation 

sentences are imposed. Although we recognize that Carter’s sentence represented 

a significant variance from the guidelines range, we cannot conclude that the 

district court committed a clear error of judgment in imposing it. 

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That Carter is attempting to battle his addiction while struggling to find 

employment is certainly unfortunate, but it does not change the fact that he has 

consistently and repeatedly failed to abide by the terms of his supervised release. 

Since commencing his supervised release in 2011, Carter has failed countless drug 

tests, been charged with criminal conduct, violated his electronic monitoring 

restrictions, failed to attend treatment sessions, and avoided contact with his 

probation officer. 

Notably, Carter has been provided multiple opportunities to reform his 

behavior. On the several occasions when he violated the terms of his probation, he 

was permitted to enter treatment in lieu of revocation. This leniency continued 

even after the district court initially revoked Carter’s probation. Indeed, upon 

being released for the second time, Carter again violated the terms of his 

supervised release by failing a drug test—yet he was granted leniency once more 

and allowed to enter treatment instead of returning to prison. But rather than 

taking full advantage of the treatment provided to him, he once again reverted back 

to the same behavior that previously resulted in his arrest and probation revocation. 

In sum, Carter has exhibited a persistent pattern of violating the terms of his 

release and squandering the opportunities afforded him to rehabilitate himself. 

Even if, as Carter argues, these violations fail to “set [his conduct] apart from any 

other technical violation revocation case,” they are adequate to support his 

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sentence. Appellant Br. at 16-17. The Supreme Court has “forbidden us from 

requiring extraordinary circumstances to justify” a sentence outside the guidelines

range. Rosales-Bruno, 789 F.3d at 1256 (internal quotation marks omitted). 

In the light of these facts, we cannot conclude that the district court abused 

its discretion in deciding that a significant upward variance from the guidelines

range was warranted. “[T]he sentence was within the outer bounds of the district 

court’s substantial sentencing discretion—in the ballpark of permissible 

outcomes.” Id. at 1257 (internal quotation marks omitted).

III. CONCLUSION

We conclude that Carter has failed to demonstrate that his sentence is 

procedurally or substantively unreasonable. We therefore affirm the sentence the 

district court imposed.

AFFIRMED.

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