FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 18, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-11644

Non-Argument Calendar

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D. C. Docket No. 99-00323-CR-KMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

NEAL O'HARA DANIELS, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

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(November 18, 2005)

Before DUBINA, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Appellant Neal O’Hara Daniels appeals his sentence of 11 months

imprisonment, to be followed by 38 months supervised release, imposed after the
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district court revoked his supervised release, pursuant to 18 U.S.C. § 3583(e). 

During his revocation hearing, Daniels admitted to supervised release violations

and requested that he be sentenced to a term of imprisonment, without a term of

supervised release, based on his inability, or unwillingness, to comply with the

requirements of supervised release. The district court rejected the request, after

stating: “Your argument is basically [that] . . . the more unsuccessful you

demonstrate to the [c]ourt you are going to be on supervised release[,] the more

we’re going to reward you by not putting you on supervised release.”

On appeal, Daniels argues that his sentence, while legal, was unreasonable

because: (1) he is a “troubled individual,” who was sexually abused as a child,

suffers from epileptic seizures, has attempted suicide, and has serious substance

abuse problems; and (2) he can successfully complete a term of imprisonment, but

has difficulty meeting the technical requirements of supervised release. He notes

that, under 18 U.S.C. § 3553(a), the district court was required to, but did not,

consider his history and characteristics. 

Prior to the Supreme Court’s decision in United States v. Booker, 543 U.S.

___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), we reviewed a sentence imposed

after revocation of supervised release using the “plainly unreasonable” standard set

forth in 18 U.S.C. § 3742(e)(4). See United States v. Scroggins, 910 F.2d 768, 769
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(11th Cir.1990). Although the Supreme Court in Booker excised § 3742(e) and

replaced the standard of review with a “reasonableness” standard, Booker, 543 U.S.

at __, 125 S. Ct. at 764-66, that standard is the same as the “plainly unreasonable”

standard in § 3742. Therefore, we will review Daniels’s sentence for

reasonableness.

Upon finding that the defendant violated a condition of supervised release, a

court, after considering the factors set forth in § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-

(7), may revoke a term of supervised release and 

require the defendant to serve in prison all or part of the term of

supervised release authorized by statute for the offense that resulted in

such term of supervised release, . . . except that a defendant . . . may

not be required to serve on any such revocation . . . more than 3 years

in prison if such offense is a Class B felony[.]

18 U.S.C. § 3583(e)(3). In addition, “the court may include a requirement that the

defendant be placed on a term of supervised release after imprisonment,” the

length of which “shall not exceed the term of supervised release authorized by

statute for the offense that resulted in the original term of supervised release, less

any term of imprisonment that was imposed upon revocation of supervised

release.” 18 U.S.C. § 3583(h). Chapter 7 of the Sentencing Guidelines, which

governs violations of supervised release, contains policy statements, one of which,

U.S.S.G. § 7B1.4, provides recommended ranges of imprisonment applicable upon
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revocation. Policy statements are merely advisory and thus, non-binding. United

States v. Cook, 291 F.3d 1297, 1301 (11th Cir. 2002). It is enough if “there is

some indication the district court was aware of and considered [Chapter 7 of the

guidelines,]” United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). 

Additionally, the district court may impose any sentence within the statutory

maximum. United States v. Hofierka, 83 F.3d 357, 362-63 (11th Cir.1996). 

Because the record demonstrates that (1) Daniels’s sentence legally was

imposed; (2) the district court’s denial of his request for a longer term of

imprisonment, rather than an additional term of supervised release, was based on

its hesitation to reward defendants who are unsuccessful on supervised release; and

(3) the district court properly considered the § 3553(a) factors, we conclude that

Daniels’s sentence was reasonable. Accordingly, we affirm Daniels’s sentence.

AFFIRMED.