[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-13204

Non-Argument Calendar

________________________

D.C. Docket No. 1:12-cr-00136-WS-MU-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

KELLY GENE COLLINS, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

________________________

(March 30, 2018)

Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM: 

Case: 17-13204 Date Filed: 03/30/2018 Page: 1 of 9 
2

Defendant Kelly Gene Collins appeals his 57-month sentence imposed 

following the revocation of his probation. On appeal, Defendant argues that the 

district court imposed an unlawful sentence that exceeded the statutory limits 

permitted for a sentence imposed upon revocation of supervised release. He also 

challenges the reasonableness of his sentence. After careful review, we affirm. 

I. BACKGROUND 

In 2012, Defendant pled guilty to possession of a firearm by a prohibited 

person, in violation of 18 U.S.C. § 922(g)(9). As part of the plea agreement, 

Defendant admitted that he possessed a 9mm machinegun pistol that did not have a 

serial number, after having been convicted of assault and battery of a family 

member in 2003. At the sentencing hearing in 2013, the district court calculated 

the guideline range as 57 to 71 months’ imprisonment based on a total offense 

level of 23 and a criminal history category of III. Defendant informed the court 

that he had served in the Marine Corps for 10 years, had received two purple 

hearts, a bronze star, and a silver star, and had been the sole survivor of a 

helicopter crash in Iraq. Noting that the guidelines called for a significant amount 

of incarceration, the district court placed significant weight on Defendant’s 

military service and varied downward to five years of probation with six months of 

home confinement. 

Case: 17-13204 Date Filed: 03/30/2018 Page: 2 of 9 
3

Approximately two years later and before the expiration of his term of 

probation, the district court issued a warrant for Defendant’s arrest based on an 

alleged violation of the conditions of his probation. Specifically, Defendant had 

been arrested and charged with battery (domestic violence). Defendant later 

admitted that he had violated the conditions of his probation and waived his right 

to a revocation hearing on the violation. 

At the revocation hearing, the district court accepted Defendant’s admission 

that he had violated the terms of his probation. The Government asked the court to 

resentence Defendant under 18 U.S.C. § 3565, which permits a court, after 

considering the 18 U.S.C. § 3553(a) factors, to revoke probation and resentence a 

defendant who has violated a condition of probation. The Government 

recommended a sentence of 57 months’ imprisonment, which was the low end of 

the original guideline range, given that Defendant had provided untruthful 

information concerning his education and military service at the original 

sentencing hearing. The court noted that Defendant had received a sentence to 

which he was not entitled because of his untrue statements, and that, if it had 

known the truth, it would not have sentenced Defendant to probation. 

Accordingly, the district court sentenced Defendant to 57 months’ imprisonment, 

followed by 12 months of supervised release. 

Case: 17-13204 Date Filed: 03/30/2018 Page: 3 of 9 
4

Defendant did not file an appeal. In 2017, he filed a motion to vacate his 

sentence under 28 U.S.C. § 2255, arguing in relevant part that his attorney was 

ineffective for failing to file a direct appeal. A magistrate judge entered a Report 

and Recommendation (“R&R”), recommending that Defendant’s § 2255 motion be 

granted to permit him to file an out-of-time appeal. The district court adopted the 

R&R, granted the § 2255 motion, vacated the judgment entered in Defendant’s 

case, and sentenced Defendant to 57 months’ imprisonment. This appeal followed. 

II. DISCUSSION

A. Legality of Sentence Imposed Upon Probation Revocation 

Defendant first argues that the district court’s imposition of a 57-month 

sentence was illegal because it exceeded the statutory maximum sentence 

permitted for a sentence imposed upon the revocation of supervised release. 

Because Defendant did not raise this argument before the district court, our 

review is limited to plain error.1

 United States v. Mangaroo, 504 F.3d 1350, 1353 

(11th Cir. 2007). Defendant essentially argues that his revocation sentence was 

illegal because it exceeded the statutory maximum term permissible for a sentence 

imposed upon revocation of supervised release under 18 U.S.C. § 3583(e)(3). 

Section 3583 provides that when a court revokes supervised release, a defendant 

 1 “The plain-error test has four prongs: there must be (1) an error (2) that is plain and (3) that 

has affected the defendant’s substantial rights; and if the first three prongs are met, then a court 

may exercise its discretion to correct the error if (4) the error ‘seriously affects the fairness, 

integrity or public reputation of judicial proceedings.’” United States v. Madden, 733 F.3d 1314, 

1320 (11th Cir. 2013). 

Case: 17-13204 Date Filed: 03/30/2018 Page: 4 of 9 
5

may not be required to serve more than two years in prison if the offense that 

resulted in supervised release is a Class C felony. 18 U.S.C. § 3583(e)(3). A 

violation of 18 U.S.C. § 922(g) is a Class C felony. See 18 U.S.C. § 924(a)(2) 

(explaining that a violation of § 922(g) carries a statutory maximum of 10 years’ 

imprisonment); 18 U.S.C. § 3559(a)(3) (providing that a Class C felony carries an 

imprisonment term between 10 and 25 years). 

Defendant, however, cannot show error, let alone plain error because his 

proceedings did not involve the revocation of supervised release. Instead, his 

probation was revoked pursuant to 18 U.S.C. § 3565. That statutory provision

provides that, if a defendant violates a condition of probation before expiration of 

the term of probation, the district court may, after considering the 18 U.S.C. 

§ 3553(a) factors:

(1) continue him on probation, with or without extending the 

term or modifying or enlarging the conditions; or

(2) revoke the sentence of probation and resentence the 

defendant under subchapter A.

18 U.S.C. § 3565(a). 

Defendant asserts that the district court referred to the proceedings as 

supervised release revocation proceedings on more than one occasion. 

Specifically, the docket entries for the initial appearance, the order scheduling the 

final revocation hearing, and the final judgment refer to “Revocation of Supervised 

Case: 17-13204 Date Filed: 03/30/2018 Page: 5 of 9 
6

Release.” Because the court characterized the proceedings as supervised release 

revocation proceedings, Defendant contends that the court was barred from 

imposing a sentence greater than two years’ imprisonment pursuant to § 3583(e). 

Defendant is simply wrong. 

The record is clear that the proceedings before the district court concerned

probation revocation proceedings. Indeed, Defendant was sentenced to five years 

of probation on the underlying § 922(g) offense. The arrest warrant issued for 

Defendant alleged that he had violated a condition of probation. Further, at the 

revocation hearing, the district court found that Defendant had “violated the terms 

and conditions of probation.” Because the proceedings involved probation 

revocation, the district court was permitted under § 3565 “to revoke the sentence of 

probation and resentence” Defendant to 57 months’ imprisonment. See 18 U.S.C. 

3565(a)(2). Accordingly, Defendant has failed to establish that the district court 

committed error, much less plain error by imposing an illegal sentence. 

B. Reasonableness of Sentence

Defendant argues that his 57-month sentence is unreasonable because the 

district court failed to consider the § 3553(a) factors. He also contends that the 

record is not sufficient for appellate review. 

Using a two-step process, we review the reasonableness of a sentence 

imposed by the district court for an abuse of discretion. United States v. Cubero, 

Case: 17-13204 Date Filed: 03/30/2018 Page: 6 of 9 
7

754 F.3d 888, 892 (11th Cir. 2014). We first look to whether the district court 

committed any significant procedural error, such as miscalculating the advisory 

guideline range, treating the Sentencing Guidelines as mandatory, failing to 

consider the 18 U.S.C. § 3553(a) factors,2 selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen sentence. Id. Then we 

examine whether the sentence is substantively reasonable in light of the totality of 

the circumstances. Id. The party challenging the sentence bears the burden of 

showing that it is unreasonable. United States v. Pugh, 515 F.3d 1179, 1189 (11th 

Cir. 2008). 

Defendant did not object to his sentence before the district court, so our 

review is limited to plain error. See United States v. Vandergrift, 754 F.3d 1303, 

1307 (11th Cir. 2014) (explaining that plain-error review applies to procedural 

reasonableness arguments raised for the first time on appeal). Defendant, however, 

has not shown error, plain or otherwise. 

First, the record refutes Defendant’s argument that the district court failed to 

consider the § 3553(a) factors. In sentencing Defendant, the district court listened 

 2 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history 

and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to 

promote respect for the law, and to provide just punishment for the offense; (3) the need for 

deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed 

education or vocational training or medical care; (6) the kinds of sentences available; (7) the 

Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; 

(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution 

to victims. 18 U.S.C. § 3553(a). 

Case: 17-13204 Date Filed: 03/30/2018 Page: 7 of 9 
8

to the parties’ arguments and stated that it needed to impose a sentence that would 

satisfy the sentencing objectives set forth under § 3553(a). United States v. 

Dorman, 488 F.3d 936, 938 (11th Cir. 2007) (“The district court need not state on 

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

factor. Rather, an acknowledgment by the district court that it has considered the 

defendant’s arguments and the § 3553(a) factors will suffice.” (citation omitted)). 

The district court also discussed Defendant’s dishonest statements during the 

original sentencing hearing, Defendant’s prior criminal convictions, and 

Defendant’s history of violence, all of which bore on his history and 

characteristics. The fact that the court emphasized one particular factor does not 

mean that it failed to consider all of the factors. See United States v. Williams, 526 

F.3d 1312, 1324 (11th Cir. 2008) (“[T]he fact that the district court emphasized 

one § 3553(a) factor, the seriousness of the offense, does not mean that [the 

defendant’s] sentence was unreasonable.”). 

We are also not persuaded by Defendant’s argument that the record is not 

sufficiently developed for us to review the reasonableness of his sentence. The

district court explained that it would apply the guideline range that was applicable 

at the original sentencing: 57 to 71 months’ imprisonment. See United States v. 

Cook, 291 F.3d 1297, 1300 (11th Cir. 2002) (explaining that “a district court may

sentence a probation violator within the range that was available at the time of the 

Case: 17-13204 Date Filed: 03/30/2018 Page: 8 of 9 
9

initial sentencing” (emphasis in original)). In fact, the district court also

considered whether, given Defendant’s obstruction of justice, it was appropriate to 

deny him the three-level reduction for acceptance of responsibility that he had 

received at the original sentencing hearing, which would have resulted in a higher 

guideline range. Nonetheless, the district court followed the Government’s 

recommendation and imposed a 57-month sentence. We conclude that the court

“set forth enough to satisfy [us] that [it] ha[d] considered the parties’ arguments 

and ha[d] a reasoned basis for exercising [its] own legal decisionmaking 

authority.” Rita v. United States, 551 U.S. 338, 356 (2007).

Accordingly, Defendant’s sentence is AFFIRMED.3

 3 We also reject Defendant’s argument that the district court failed to elicit objections to the 

sentence, in violation of United States v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on 

other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993). After imposing 

sentence, although the court stated, “Anything further . . .?,” it immediately said, “Any 

objections or other matters we need to put on the record.” See United States v. Maurice, 69 F.3d 

1553, 1557 (11th Cir. 1995) (explaining that a district court complies with Jones by specifically 

asking for objections following sentencing). 

Case: 17-13204 Date Filed: 03/30/2018 Page: 9 of 9