FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 4, 2008

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-14965

Non-Argument Calendar

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D.C. Docket No. 07-00178-CR-T-17-TGW

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee, 

versus

TIMOTHY WAYNE FERGUSON,

 Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida 

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(August 4, 2008)

Before EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
 The warrant issued for Defendant’s arrest for violation of supervised release included two new 1

substantive violations--cocaine possession and tampering with evidence--and a number of technical

violations. The government did not pursue the cocaine possession charge at the revocation hearing;

Defendant admitted all other violations, except the evidence tampering charge. After hearing

testimony, the district court found Defendant guilty of the evidence tampering charge.

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Defendant-Appellant Timothy Wayne Ferguson appeals his 24-month

sentence for violation of his supervised release. No reversible error has been

shown; we affirm.

Defendant offers no challenge to the revocation of his supervised release; he

admitted to supervised release violations. After considering the section 3553(a) 1

factors, 18 U.S.C. § 3553(a), the district court had the discretion to terminate

Defendant’s supervised release, extend it, or revoke it and sentence him to a term

of prison. See 18 U.S.C. § 3583(e). Defendant argues that the 24-month sentence

imposed upon revocation is due to be reversed because the district court

considered improperly Defendant’s need for rehabilitation in imposing a prison

term and because the sentence imposed was unreasonable under section 3553(a). 

We review a sentence imposed upon revocation of supervised release for

reasonableness. See United States v. Sweeting, 437 F.3d 1105, 1106-07 (11 Cir. th

2006).

Defendant cites 18 U.S.C. § 3582(a) in support of his contention that the

district court abused its discretion when it factored rehabilitation into its decision
 The government argues that plain error review applies because this sentencing challenge was not 2

raised below. Because we conclude that no error -- plain or otherwise -- has been shown, we do not

address this contention.

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to impose imprisonment upon revocation of Defendant’s supervised release.2

Section 3582(a) states in relevant part that “imprisonment is not an appropriate

means of promoting correction and rehabilitation.” And in United States v.

Brown, 224 F.3d 1237, 1240 (11 Cir. 2000), we said “a court cannot impose an th

initial incarcerative sentence for the purpose of providing a defendant with

rehabilitative treatment.” But Brown also drew a distinction between an initial

incarcerative sentence and a sentence imposed after revocation of supervised

release: “a court may consider a defendant’s rehabilitative needs when imposing a

specific incarcerative term following revocation of supervised release.” Id.

(footnote omitted). See also, United States v. Wiggins, 220 F.3d 1248 (no abuse

of discretion to consider drug treatment availability when imposing sentence upon

revocation of supervised release). Brown, after examining the interplay between

section 3583(e) -- which, unlike section 3582, addresses revocation of supervised

release specifically -- and the section 3553(a) factors (which section 3583(e)

requires a court to consider) identified a “clear legislative mandate that a court

must consider a defendant’s need for correctional treatment when determining

whether to revoke supervised release and sentence a defendant to prison.” Id. at
4

1241. The district court’s consideration of Defendant’s need for rehabilitative

treatment constituted no abuse of discretion.

Defendant also contends that the 24-month within-guidelines-range

sentence imposed just weeks before Defendant’s term of supervised release was

due to end was unreasonable. The deferential abuse-of-discretion standard of

review applies to all sentences, “whether inside, just outside, or significantly

outside the Guidelines range.” Gall v. United States, 128 S.Ct. 586, 591 (2007).

Although we would ordinarily expect a sentence within the guideline range to be

reasonable, that expectation still must be measured against the record. United

States v. Talley, 431 F.3d 784, 788 (11 Cir. 2005). The section 3553(a) factors th

must be considered in fashioning a reasonable sentence upon revocation of

supervised release, together with the advisory policy statements in Chapter 7 of

the Sentencing Guidelines.

A review of the record shows that the district court considered the

applicable guideline range, Defendant’s criminal history, the many opportunities

he had been afforded, his need for rehabilitation and vocational training, and the

need to protect the community. Also, the record demonstrates that Defendant

already had violated the terms of his supervised release at least twice. The record

offers scant support for Defendant’s claim that the district court did not consider
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properly the section 3553(a) factors; nothing in the record undermines this Court’s

ordinary expectation of reasonableness for a within-guideline-range sentence. 

Talley, 431 F.3d at 788.

AFFIRMED.