United States Court of Appeals

For the Eighth Circuit

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No. 13-2907

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United States of America,

lllllllllllllllllllll Plaintiff - Appellee,

v.

Tony Anthony Day, also known as “50 Cent”, also known as “50”,

lllllllllllllllllllll Defendant - Appellant.

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 Appeal from United States District Court 

for the District of South Dakota - Sioux Falls

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 Submitted: March 10, 2014

 Filed: July 9, 2014

[Unpublished]

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Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.

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PER CURIAM.

Tony Anthony Day appeals a sentence imposed by the district court after 1

revocation of his supervised release. We affirm.

The Honorable Karen E. Schreier, United States DistrictJudge for the District 1

of South Dakota.
In November 2010, Day pleaded guilty to conspiracy to distribute a controlled

substance. The district court sentenced Day to 120 months’ imprisonment, followed

by five years of supervised release. In light of the Fair Sentencing Act of 2010 and

Dorsey v. United States, 132 S. Ct. 2321 (2012), the district court later reduced Day’s

sentence to time served and three years of supervised release.

Day began his term of supervised release on September 7, 2012. He

immediately complained about his placement at a residential treatment center and

requested transfer to another facility. Day also complained about his assignment to

the code-a-phone drug-testing program. To accommodate Day, authorities moved

him to a different facility and changed his testing protocol to a sweat patch system. 

Only two weeks later, however, Day complained about the patch as well, and

authorities returned him to the code-a-phone system.

Day also promptly failed to comply with certain conditions of his supervised

release. When the infractions continued, the probation office filed a petition to

revoke Day’s supervised release in June 2013. The government eventually sought to

proceed on three alleged violations of Day’s conditions: that he (1) traveled out of

state without permission, (2) consumed alcohol, and (3) failed to notify his probation

officer of changes in his living situation.

At a revocation hearing, Day admitted that he left South Dakota without

permission, consumed alcohol, and failed to notify his probation officer ten days prior

to his changing his residence. In light of Day’s admitted violations, the district court

revoked Day’s supervised release.

Based on the Grade C violations of supervised release and a criminal-history

category of VI, Day’s advisory guideline range was eight to fourteen months’

imprisonment. See USSG § 7B1.4(a). Citing Day’s refusal to listen to his probation

officer, repeated complaints about his living situation and drug testing arrangements,

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failure to inform his probation officer that he was leaving the state, and ongoing

alcohol use, the district court varied upward from the advisory range and sentenced

Day to serve twenty-eight months in prison, to be followed by two years of

supervised release.

We review a sentence imposed after revocation ofsupervised release for abuse

of discretion. United States v. Thunder, 553 F.3d 605, 607 (8th Cir. 2009). Day

argues that the district court abused its discretion by giving insufficient justification

for its imposition of a sentence above the advisory range, but the number and

seriousness of the violationsrecounted above are a reasonable basis for the sentence. 

See, e.g., United States v. Larison, 432 F.3d 921, 923-24 (8th Cir. 2006).

Day also argues that the district court gave too much weight to his alcohol use

and the probation office’s difficulty in supervising him. But the court is required to

consider the history and characteristics of the defendant, 18 U.S.C. § 3583(c) (citing

18 U.S.C. § 3553(a)(1)), and under the deferential abuse-of-discretion standard

described in Gall v. United States, 552 U.S. 38, 51 (2007), the district court “has

substantial latitude to determine how much weight to give the various factors under

§ 3553(a).” United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009). 

Although alcohol use and incorrigibility were bases for the revocation, the court is

not forbidden to consider those factors in deciding whether to vary from the advisory

range. United States v. Franik, 687 F.3d 988, 991 (8th Cir. 2012).

Day also complains that the district court abused its discretion by imposing a

new term of supervised release to follow the twenty-eight-month term of

incarceration. We disagree that Day’s inability to comply with supervision after his

first release from custody means that the district court must exempt him from

supervised release on the second go-round. See 18 U.S.C. § 3583(h). The new term

of supervised release reasonably promotes the statutory purposes of specific

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deterrence and protection of the public. See 18 U.S.C. § 3583(c) (citing

18 U.S.C. §§ 3553(a)(2)(B), 3553(a)(2)(C)). 

The judgment of the district court is affirmed.

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