FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 November 17, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-11430

Non-Argument Calendar

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D. C. Docket No. 98-00083-CR-ODE-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

GREGORY ALPHONSO FINNEY, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(November 17, 2005)

Before ANDERSON, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

Appellant Gregory Alphonso Finney appeals the sentence imposed
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following the revocation of his supervised release, pursuant to 18 U.S.C. §

3583(g). On appeal, Finney argues that 18 U.S.C. § 3583 requires that district

courts consider the factors set forth in 18 U.S.C. § 3553 before imposing a

sentence for a defendant’s violation of his supervised release. While Finney

acknowledges our holding in United States v. Brown, 224 F.3d 1237 (11th Cir.

2000), that mandatory revocation of supervised release, under 18 U.S.C. § 3583(g),

does not require a district court to consider the § 3553 factors, Finney contends that

general principles of statutory construction suggest that § 3553 should generally

apply to all revocations of supervised release. Finney further argues that the §

3553 factors are generally applicable to federal sentencings under United States v.

Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Finney also

maintains that the district court did not consider or refer to any of the § 3553

factors during the sentencing hearing or in the court’s written order. 

 In instances where the district court imposes a sentence beyond the chapter

seven guideline range, we review for an abuse of discretion. United States v.

Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Finney did not raise his

arguments regarding the application of the § 3553 factors, pursuant to principles of

statutory construction or Booker, in the district court, and, thus, he raises those

arguments for the first time in his appellate brief. We review sentencing arguments
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that are raised for the first time on appeal for plain error. Aguillard, 217 F.3d at

1320. Under plain error review, there must be (1) an error, (2) that is plain, and

(3) affects substantial rights. Id. When these three factors are met, we may then

exercise our discretion and correct the error if it seriously affects the fairness,

integrity, or public reputation of the judicial proceedings. United States v. Olano,

507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993).

Section 7B1.4 of the chapter seven policy statements of the Guidelines,

provides the range of imprisonment applicable upon revocation of probation or

supervised release. U.S.S.G. § 7B1.4(a). The applicable range in Finney’s case,

where he committed a grade C violation of his supervised release and had an

original criminal history category of IV, was 6 to 12 months’ imprisonment. 

U.S.S.G. §§ 7B1.1(a)(3)(B), 7B1.4(a). The chapter seven guidelines are merely

advisory and it is sufficient that there be “some indication that the district court

was aware of and considered them.” Aguillard, 217 F.3d at 1320. 

Where, as here, a defendant refuses to comply with drug screening that is

imposed as a condition of supervised release, the defendant is subject to mandatory

revocation of his supervised release and imposition of a term of imprisonment not

to exceed a specific maximum. 18 U.S.C. § 3583(g). Pursuant to 18 U.S.C.

§ 3583(e)(3), “the court may, after considering the factors set forth in” § 3553(a),
Under 18 U.S.C. § 2113(a), the maximum term of imprisonment for bank robbery, the 1

offense for which Finney was originally convicted, is 20 years. This maximum term results in

bank robbery earning the class C felony classification, pursuant to 18 U.S.C. § 3559(a)(3). 

Under U.S.S.G. § 7B1.1(a)(3)(B), Finney’s supervised release violation constituted a 2

Grade C violation. As such, 18 U.S.C. § 3583(e)(3) provided for a maximum term of

imprisonment of 2 years upon revocation of supervised release. The 2-year statutory maximum

was reduced by 6 months in Finney’s case because he had previously served 6 months’

imprisonment for his first revocation of supervised release. Thus, the statutory maximum term

of imprisonment that Finney could serve for his second supervised release violation is 18

months. See United States v. Williams, No. 04-15732, ___ F.3d ___ (11th Cir. Sept. 19, 2005) 

(holding that § 3583(e)(3)’s statutory maximums apply in the aggregate, and that, where a

defendant had previously been sentenced to one-year and one day imprisonment upon revocation

of his supervised release and § 3583(e)(3)’s statutory maximum was two years’ imprisonment,

the district court could only sentence the defendant to 364 days’ imprisonment upon “rerevocation” of his supervised release).

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revoke a term of supervised release and, where the offense that resulted in the

supervised release is a class C felony , impose a term of imprisonment not to 1

exceed two years. However, we have previously determined that, “when 2

revocation of supervised release is mandatory under 18 U.S.C. § 3583(g), the

statute does not require consideration of the § 3553(a) factors.” Brown, 224 F.3d

at 1241 (quotation omitted) (emphasis in original).

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

discern no reversible error.

Finney is unable to show that the district court committed plain error in

sentencing him beyond the chapter seven guideline range without considering the

§ 3553(a) factors. First, the Guidelines ranges provided in U.S.S.G. § 7B1.4(a) are

advisory, and, as such, the district court is not required to impose a sentence within
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the recommended range. See Aguillard, 217 F.3d at 1320. Here, the court’s

statement that it found that “the guideline range of six to twelve months is not

adequate under the facts of Mr. Finney’s case,” was sufficient to demonstrate that

the court considered the Guidelines range. See id. (holding that “it is enough that

there is some indication that the court was aware of and considered” the Guidelines

range). Additionally, despite Finney’s argument to the contrary, our precedent

clearly establishes that, where a defendant is subject to mandatory revocation of

supervised release, pursuant to 18 U.S.C. § 3583(g), the court is not required to

consider the § 3553(a) factors. Finney was subject to mandatory revocation

because he refused to comply with drug screening. See 18 U.S.C. § 3583(g). 

Therefore, even if the district court did not consider the § 3553(a) factors in

sentencing Finney, it did not commit an error.

Moreover, Finney’s argument that Booker made the § 3553(a) factors

generally applicable to federal sentencings is similarly without merit. We have

recently held that neither we nor the Supreme Court has determined whether

Booker applies to sentences imposed following a revocation of supervised release. 

United States v. White, 416 F.3d 1313, 1318 (11th Cir. 2005). Therefore, even

assuming the court committed a Booker error, that error cannot be “plain” because

it is not clearly established that Booker applies to sentences imposed after the
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revocation of supervised release. See id. at 1319 (holding that there can be no

plain error with regard to an issue that neither the Supreme Court nor this Court

has ever resolved).

Lastly, we have determined that Booker did not alter our standards for

reviewing the application of the Guidelines that were used pre-Booker. United

States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). Once the court has

calculated the Guidelines range in the same manner as it did pre-Booker, the court

may then “impose a more severe or more lenient sentence as long as the sentence is

reasonable.” Id. at 1178-79. As determined above, the district court, pre-Booker

and in the instant case, considered the chapter seven guideline ranges as advisory

and was not required to consider the § 3553(a) factors in imposing a mandatory

revocation of supervised release and term of imprisonment under 18 U.S.C.

§ 3583(g). See Aguillard, 217 F.3d at 1320; Brown, 224 F.3d at 1241. 

Considering Finney’s failure to seek adequate treatment for his drug problem and

his repeated supervised release violations, the court did not err in imposing a more

severe sentence than that which the Guidelines recommended. Accordingly,

Finney cannot demonstrate that the court plainly erred in imposing his sentence,

and, thus, we affirm.

AFFIRMED.