FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 24, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-12471

Non-Argument Calendar

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D. C. Docket No. 99-00049-CR-WS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

QUINCY LEVELL MYERS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Alabama

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(October 24, 2008)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

In 1999, Quincy Levell Myers was convicted for drug possession and

sentenced to 87 months’ imprisonment and 5 years of supervised release. He was
released from prison in 2005, and in 2007, Myers violated his supervised release.

He was sentenced to 3 months’ imprisonment and 36 months of supervised release.

During this second term of supervised release, Myers’s probation officer

petitioned the court to revoke Myers’s release because Myers had again violated

the release terms by failing to submit monthly reports, failing to adhere to drug

testing requirements, and testing positive for cocaine. Myers admitted the

violations and waived his right to a revocation hearing.

At sentencing, the court noted that this was Myers’s second violation of

supervised release, that Myers had not successfully completed a drug addiction

program while previously incarcerated, and that he repeatedly failed to cooperate

with his release terms. The court considered the Chapter 7 sentencing guidelines

provisions and determined that a sentence within the guideline was not appropriate.

Accordingly, the court imposed a 24-month term of imprisonment with no further

supervised release. The court asked counsel whether there was anything further,

but did not elicit specific objections. This appeal followed.

On appeal, Myers first argues that the district court erred by failing to elicit

objections, as required by 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), and that the record is insufficient for meaningful review of his sentence.

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Second, Myers argues that his sentence is unreasonable.

I. Objection-Elicitation Requirement

District courts must “elicit fully articulated objections, following imposition

of sentence, to the court’s ultimate findings of fact and conclusions of law,” as well

as “the manner in which the sentence is pronounced.” Jones, 899 F.2d at 1102.

This requirement applies to revocation of supervised release proceedings. United

States v. Campbell, 473 F.3d 1345, 1348 (11th Cir. 2007).

Here, the parties concede that the court failed to elicit objections as required

by Jones. “Where the district court has not elicited fully articulated objections

following the imposition of sentence, [we] will vacate the sentence and remand for

further sentencing in order to give the parties an opportunity to raise and explain

their objections.” Jones, 899 F.2d at 1103. However, remand is unnecessary when

the record on appeal is sufficient for meaningful appellate review. Campbell, 476

F.3d at 1347.

Upon review of the record, we conclude remand is not necessary because the

record is sufficient for appellate review.

II. Reasonableness

We review a sentence imposed pursuant to revocation of a term of

supervised release for reasonableness. United States v. Sweeting, 437 F.3d 1105,

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1106-07 (11th Cir. 2006). However, we review “a district court’s decision to

exceed the Chapter 7 recommended guidelines range for an abuse of discretion.”

United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006).

Under 18 U.S.C. § 3583(g), the court is required to revoke supervised

release where the defendant violates the terms of supervised release by possessing

drugs or refusing to comply with drug testing requirements. The court must then

sentence the defendant to a term of imprisonment as authorized under § 3583(e)(3).

Because Myers’s original conviction was a Class A felony, the maximum term the

court could impose was five years’ imprisonment. 18 U.S.C. § 3583(g), (e)(3).

The advisory guideline range for a sentence imposed after revocation of

supervised release is calculated by the grade classification of the violation for

which supervised release was revoked, as determined by U.S.S.G. § 7B1.1(a)(1)-

(3), and the criminal history category that was “applicable at the time the defendant

originally was sentenced to a term of supervision.” U.S.S.G. § 7B1.4(a). Here, the

parties agree that the advisory guidelines range under Chapter 7 was three to nine

months’ imprisonment.

In determining the appropriate sentence upon revocation, the court may

consider (1) the nature and circumstances of the offense and the history and

characteristics of the defendant, (2) the need for deterrence, to protect the public,

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and to provide the defendant with needed educational or medical care, (3) the kinds

of sentences and sentencing range provided by the Guidelines, (4) the need to

avoid sentencing disparities, and (5) the need to provide restitution to victims. The

court may revoke a term of supervised release and impose a sentence of

imprisonment if it “finds by a preponderance of the evidence that the defendant

violated a condition of supervised release.” 18 U.S.C. §§ 3583(e), (e)(3),

3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(6), (a)(7). As this court has

explained, however, a court is not required to consider the sentencing factors in

§ 3553(a) when revocation is mandatory under § 3583(g). United States v. Brown,

224 F.3d 1237, 1241 (11th Cir. 2000).

Here, the court considered the § 3553(a) factors even though it was not

required to do so. The court also considered the advisory guidelines range and

explained why it believed a sentence within the guidelines range was inappropriate

to provide punishment. In doing so, the court considered Myers’s repeated

violations of the terms of his release and the lack of deterrence that previous

incarceration had provided. The court also noted Myers’s substance abuse problem

and his unsuccessful attempts at rehabilitation. Moreover, the ultimate sentence

imposed was well below the statutory maximum sentence. Accordingly, we

conclude that the district court did not abuse its discretion, and we AFFIRM

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Myers’s sentence.

AFFIRMED.

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