FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 May 10, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-14327

Non-Argument Calendar

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D.C. Docket No. 03-00181-CR-CG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LESLIE RICHARDSON,

Defendant-Appellant.

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Appeal from the United States District Court for the

Southern District of Alabama

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(May 10, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Appellant Leslie Richardson appeals his 24-month sentence imposed for

violating the terms of his supervised release, 18 U.S.C. § 3583(e). After finding
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that Richardson (1) left the district without permission to gamble; (2) used drugs;

(3) assaulted his ex-girlfriend; and (4) failed to pay his monthly fine payment, the

district court considered the Chapter 7 advisory guidelines range of 5 to 11 months

imprisonment, but decided to sentence Richardson to the statutory maximum of

24-months imprisonment based on his criminal history and the testimony that he

was a danger to others while on controlled substances. Richardson argues that the

following mitigating factors, (1) the questionable credibility of his ex-girlfriend;

(2) the nature of his offenses; and (3) the fact that he admitted to drug and

gambling addictions and agreed to counseling, support the conclusion that the

district court’s imposition of a 24-month sentence (the statutory maximum) is

plainly unreasonable.

We review for abuse of discretion a district court’s decision to exceed the

recommended sentencing range upon revocation of supervised release under

Chapter 7 of the United States Sentencing Commission Guidelines Manual. See

United States v. Brown, 224 F.3d 1237, 1239 (11th Cir. 2000). Chapter 7 pertains

to violations of probation and supervised release. See U.S.S.G. § 7B1. The

guideline presents a table of recommended imprisonment ranges for violations of

certain grades at specific criminal history categories. U.S.S.G. § 7B1.4(a). It is

undisputed that Richardson’s violations of supervised release are classified as
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Grade C violations and that his original sentence carried a Criminal History

Category of III. A defendant with that profile would receive a recommended

sentence of 5 to 11 months. See U.S.S.G. § 7B1.4 (a). The district court,

however, also had available statutory maximums as a sentence. The statutory

maximum for a revoked term of supervised release is two years in prison for a

class C felony. 18 U.S.C. § 3583(e)(3).

“We have held that the chapter seven guidelines are merely advisory, and it

is enough that there is some indication the district court was aware of and

considered them.” United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.

2000) (citation omitted). The district court may impose any sentence within the

statutory maximum and a sentence in excess of the Chapter 7 range is permitted so

long as it is within the range imposed by Congress. United States v. Hofierka, 83

F.3d 357, 362-63 (11th Cir. 1996). Moreover, a district court may consider the

rehabilitative needs of a defendant when imposing a sentence exceeding that

recommended by Chapter 7. Brown, 224 F.3d at 1243. We also give great

deference to the district court in making credibility determinations with regard to

witnesses. United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003)

(citations omitted). 
Consolidated with United States v. Fanfan.

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After reviewing the record, we conclude that the 24-month sentence of

imprisonment resulting from the district court’s revocation of Richardson’s

supervised release is not an abuse of discretion. Although the sentencing

guidelines recommended a term of imprisonment ranging from 5 to 11 months, the

district court was not required to apply the sentencing guidelines because it

explicitly mentioned the guidelines and decided that the recommended sentence

was inadequate under the circumstances. Moreover, a review of the record

establishes that the district court’s credibility findings are supported, and thus we

must give them great deference.

Finally, Richardson did not raise in the district court, in his initial brief, nor

in a motion to file a supplemental brief, a constitutional challenge to the

calculation of his sentence under the Federal Sentencing Guidelines. As such, any

possible claim based on the U.S. Supreme Court’s recent decisions in United

States v. Booker, 543 U.S. ___, 125 S.Ct. 738 ___ L.Ed.2d ___ (2005), and 1

Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),

arguably has been abandoned. See United States v. Stinson, 97 F.3d 466, 470 n.2

(11th Cir. 1996) (declining to reach an issue that the defendant abandoned by not

raising it in his initial brief). Even if this court construed Richardson’s fact-based
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challenged to his sentence as also implicitly presenting a constitutional claim for

the first time on appeal, such a claim would be reviewable only for plain error. 

See Booker, 543 U.S. at ___, 125 S.Ct. at 769.

An appellate court may not correct an error the defendant failed to raise in

the district court unless there is: “(1) error, (2) that is plain, and (3) that affects

substantial rights.” United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781,

1785, 152 L.Ed.2d 860 (2002) (quotations and internal marks omitted). “If all

three conditions are met, an appellate court may then exercise its discretion to

notice a forfeited error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (quotations and

internal marks omitted).

No plain error exists in this case because the first prong of the test is not

satisfied. The guidelines system concerning revocation of supervised release

under which Richardson’s sentence was imposed is advisory, not mandatory. See

Aguillard, 217 F.3d at 1320 (“chapter 7 guidelines are merely advisory”). Thus,

there was no Booker error. Moreover, persuasive authority from the Second

Circuit has held that remand was not necessary in a revocation case in which a

two-year sentence was imposed upon revocation of supervised release because,

even though the revocation sentence was imposed pre-Booker, the district court, as
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noted in the instant case as well, appreciated the fact that the guideline sentencing

regime was advisory with respect to revocation of supervised release. See United

States v. Fleming, No. 04-1817, 2005 WL 23720 (2d Cir. Feb. 2, 2005).

For the above stated reasons, we affirm Richardson’s sentence.

AFFIRMED.
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BARKETT, Circuit Judge, concurring:

I concur in the result.