FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 26, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-11171 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 2:00-cr-14013-KMM-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

ANTWON JOSHUA WESLEY, 

Defendant-Appellant.

________________________

 Appeal from the United States District Court

 for the Southern District of Florida

 ________________________

(September 26, 2011)

Before TJOFLAT, CARNES and HULL, Circuit Judges.

PER CURIAM:
Antwon Joshua Wesley appeals his 27-month sentence imposed after the

mandatory revocation of his supervised release. After review, we affirm.

I. BACKGROUND

A. Conviction, Sentence, and Supervised Release

In July 2000, Wesley pled guilty to one count of carrying a firearm (a semiautomatic assault weapon) during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1), a Class A felony. According to his presentence

investigation report, Wesley had 41 criminal history points and a criminal history

category of VI. Consequently, his guidelines imprisonment range, per U.S.S.G.

§ 2K2.4(b), was a minimum ten-year imprisonment term and a maximum of life

under 18 U.S.C. § 924(c)(1)(B)(i). The district court sentenced Wesley to 120

months’ imprisonment, followed by three years of supervised release. Among the

conditions of his supervised release, Wesley could not commit another federal,

state, or local crime, illegally possess or use controlled substances, and had to

submit to at least two periodic drug tests. On July 1, 2009, Wesley commenced

his term of supervised release.

B. Petition for Revocation of Supervised Release

In May 2010, the United States Probation Office filed a superseding petition

requesting a warrant for Wesley on account of his alleged violations of the

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conditions of his supervised release. The petition alleged that between July 13,

2009 and February 1, 2010, Wesley committed the following violations: (i) he

unlawfully possessed or used controlled substances, namely, his urine samples

tested positive for marijuana on July 13, July 17, September 4, November 19, and

November 23, 2009, marijuana and cocaine on October 22, 2009, and cocaine on

January 6, 2010 (Violations 1 through 6 and 8); (ii) he violated the law when he

possessed cocaine on November 3, 2009, and February 1, 2010, and drug

paraphernalia on February 1, 2010, in violation of Florida Statutes §§ 893.13 and

893.147, offenses to which he pled guilty and received a 364-day sentence

(Violations 7 and 10); and (iii) he was unsuccessfully discharged and consequently

failed to participate in an approved substance abuse treatment program on January

14 and January 20, 2010 (Violation 9).

C. Magistrate Judge’s Report and Recommendation

At Wesley’s initial appearance in December 2010, following his arrest for

the alleged violations, the magistrate judge informed Wesley that he faced ten

charges in the petition. The government stated that the maximum statutory penalty

was five years’ imprisonment and the guidelines range was 21 to 27 months. 

Wesley acknowledged that he understood and then admitted to all ten violations as

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charged. The magistrate judge entered a report (“R&R”) recommending that

Wesley be found to have violated his supervised release.

Based on Wesley’s Grade B violations of supervised release—Violations 7

and 10—and criminal history category of VI, the probation office prepared a

revocation report stating that Wesley’s guidelines imprisonment range was 21 to

27 months. See U.S.S.G. § 7B1.4(a). Because Wesley’s original offense was a

Class A felony, five years was the maximum imprisonment term that could be

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

Wesley did not file objections to either the magistrate judge’s R&R or the

probation office’s revocation report.

D. Revocation and Sentencing Hearing

At the revocation and sentencing hearing, the district court adopted the

magistrate judge’s R&R, and adjudicated Wesley guilty of violating his supervised

release as to each of the ten violations. The district court noted that Wesley had a

criminal history category of VI and a guidelines imprisonment range of 21 to 27

months.

Wesley’s counsel asked for a 21-month sentence. Wesley admitted that, as

a result of some of his conduct, he had pled guilty to two state charges and had

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already served a 364-day jail sentence. Wesley noted that he had been in the

Marshal’s custody since December 1, 2010. 

The government requested that the court impose a 27-month sentence. The

government asked that the district court not impose a new term of supervised

release because Wesley was not capable of complying with its terms. The district

court stated that it did not understand such a “sentencing philosophy of rewarding

somebody for not” complying with the conditions of supervised release. In

response, the government emphasized Wesley’s problems with addiction and

refusals to accept help. 

The district court noted that it had “carefully considered” the parties’

statements and the information contained in the “violation report” and concluded

that Wesley violated the conditions of supervised release. As a result, the district

court revoked Wesley’s supervised release and sentenced Wesley to 27 months’

imprisonment, followed by 33 months of supervised release. The district court

cited its obligation and duty to both the defendant and the public to impose

another term of supervised release. Wesley timely appealed.

II. DISCUSSION

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On appeal, Wesley argues that his 27-month sentence is both procedurally

and substantively unreasonable because the district court failed to consider or

properly weigh the 18 U.S.C. § 3553(a) factors.

A. Revocation of Supervised Release and § 3553(a) Factors

“Pursuant to 18 U.S.C. § 3583(e), upon finding that the defendant violated a

condition of supervised release, a district court may revoke the term of supervised

release and impose a term of imprisonment after considering the specific factors

set forth in 18 U.S.C. § 3553(a).” United States v. Velasquez Velasquez, 524 1

F.3d 1248, 1252 (11th Cir. 2008). The district court must also consider the policy

statements in Chapter 7 of the Sentencing Guidelines, one of which provides

recommended, non-binding ranges of imprisonment. United States v. Silva, 443

F.3d 795, 799 (11th Cir. 2006). Based on Wesley’s Grade B violations of

supervised release and a criminal history category of VI, Wesley’s recommended

guidelines range for imprisonment under advisory Chapter 7 was 21 to 27 months. 

See U.S.S.G. § 7B1.4(a). Because Wesley’s original offense was a Class A felony,

 The factors the district court considers include: (1) the nature of the circumstances of the 1

offense; (2) the history and characteristics of the defendant; (3) the need for the sentence to reflect

the seriousness of the offense, to promote respect for the law, and to provide just punishment for the

offense; (4) the kinds of sentences and sentencing range established by the Guidelines; and, in the

case of a violation of supervised release, (5) the applicable Guidelines or policy statements issued

by the Sentencing Commission. 18 U.S.C. § 3553(a); United States v. Sweeting, 437 F.3d 1105,

1107 (11th Cir. 2006).

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five years was the maximum imprisonment term that could be imposed upon

revocation of supervised release. See 18 U.S.C. § 3583(e)(3).

B. Reasonableness Analysis

“We review the sentence imposed upon the revocation of supervised release

for reasonableness.” Velasquez Velasquez, 524 F.3d at 1252. Our reasonableness

review applies the deferential abuse of discretion standard. Gall v. United States,

552 U.S. 38, 41, 46, 128 S. Ct. 586, 591, 594 (2007). We first look at whether the

district court committed any significant procedural error and then at whether the

sentence is substantively reasonable under the totality of the circumstances and the

§ 3553(a) factors. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). 

The party challenging the sentence has the burden to show it is unreasonable. 

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

1. Procedural Reasonableness

As to the procedural reasonableness, Wesley argues that the district court

failed to consider the § 3553(a) factors. We have concluded that nothing in the

case law “requires the district court to state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a)

factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Rather, an

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indication that the district court has considered a defendant’s arguments and the

§ 3553(a) factors is sufficient. Id. at 1330. 

Here, the district court did not explicitly mention the § 3553(a) factors,

although the dialogue between the court and the parties implicates several

§ 3553(a) factors. Specifically, the district court considered Wesley’s criminal

history category of VI, his violation report including his recent struggles with

drugs and failure to complete drug treatment, the court’s obligation to the public,

and the guidelines imprisonment range of 21 to 27 months. In other words, the

district court considered the history and characteristics of the defendant, the nature

and circumstances of the offense, and the need for deterrence. See 18 U.S.C.

§ 3553(a). Because the record indicates the district court considered Wesley’s

arguments and the substance of the § 3553(a) factors, Wesley has not met his

burden to show procedural error. See Scott, 426 F.3d at 1330.

2. Substantive Reasonableness

As to substantive reasonableness, Wesley argues the district court

unreasonably failed to give weight to certain § 3553(a) factors. We review the

substantive reasonableness of a sentence in light of the § 3553(a) factors and the

“totality of the circumstances.” Pugh, 515 F.3d at 1190. The weight to be given

any particular factor is left to the sound discretion of the district court. United

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States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). We ordinarily expect a

sentence within the guidelines range to be reasonable. United States v. Talley,

431 F.3d 784, 788 (11th Cir. 2005). A sentence imposed well below the statutory

maximum is another indicator of a reasonable sentence. See United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

In this case, Wesley has not demonstrated that his 27-month sentence within

the guidelines range was substantively unreasonable. His 27-month sentence was

well below the maximum sentence of five years’ imprisonment, one indicator that

it was a reasonable sentence. See id. 

The sentence, moreover, met the goals encompassed within § 3553(a). 

Wesley previously was convicted of, inter alia, grand theft auto, battery, attempted

burglary, and cocaine possession, resulting in a criminal history category of VI. 

His underlying conviction in the current case is a serious firearm offense during a

drug trafficking crime. Wesley admitted to violating his supervised release less

than two weeks after his initial release from prison. Wesley eventually had a total

of ten violations within the first year, all of which related to the unlawful use or

possession of controlled substances. In addition, Wesley failed to participate in

substance abuse counseling and failed to secure employment during his supervised

release.

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Considering Wesley’s extensive criminal history and the nature and

seriousness of his violations of supervised release, a 27-month sentence was

necessary to promote respect for the law, provide just punishment, deter Wesley

from further criminal activity, and protect the public. Under the totality of the

circumstances, we cannot say the district court abused its discretion in imposing a

27-month sentence. 

Wesley also argues his 27-month sentence, at the high end of his range of

21 to 27 months, was substantively unreasonable because the district court placed

“unreasonable weight” on not rewarding Wesley for his noncompliance with the

conditions of supervised release. A district court may abuse its discretion by

failing to consider relevant factors that were due significant weight, or by giving

significant weight to an improper or irrelevant factor. United States v. Irey, 612

F.3d 1160, 1189 (11th Cir. 2010) (en banc). However, Wesley misconstrues the

district court’s comment. The district court was explaining its reason for

continuing to impose a term of supervised release despite Wesley’s past failures to

comply. Nothing in the record suggests the district court focused on not

rewarding Wesley for his noncompliance as a factor in selecting the duration of

the new prison sentence.

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For all these reasons, Wesley failed to carry his burden to show that his

sentence is unreasonable.

AFFIRMED.

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