* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20854

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JAMES D. ODEMS

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:00-CR-512-1

Before KING, GARWOOD and BARKSDALE, Circuit Judges.

PER CURIAM:*

James D. Odems (Odems) appeals the 24-month sentence imposed

November 2007 following the revocation of his supervised release. Odems was

originally convicted for being a felon in possession of a firearm and was

sentenced to a term of imprisonment of 51 months,to be followed by a three-year

term of supervised release. The district court determined that Odems violated

the terms of his supervised release by committing a law violation, delivery of a

United States Court of Appeals

Fifth Circuit

F I L E D

October 24, 2008

Charles R. Fulbruge III

Clerk
No. 07-20854

2

controlled substance, and by being found in possession of a controlled substance,

cocaine.

A sentence may be overturned if it is either procedurally or substantively

unreasonable. Gall v. United States, 128 S.Ct. 586, 597 (2007). Odems argues

that the sentence imposed is both procedurally and substantively unreasonable.

He bases this argument on his contention that the district court did not give

consideration to his age and medical infirmities and imposed a sentence greater

than necessary to meet the objectives of 18 U.S.C. § 3553(a). 

When sentencing a defendant after the revocation of supervised release,

the district court may impose any sentence that falls within the appropriate

statutory maximum term of imprisonment allowed for the revocation sentence.

18 U.S.C. § 3583(e)(3). In choosing a sentence, the district court is directed to

consider the factors enumerated in § 3553(a), including the nonbinding policy

statements found in Chapter Seven ofthe Sentencing Guidelines. United States

v. Mathena, 23 F.3d 87, 90-93 (5th Cir. 1994).

Prior to United States v. Booker, 125 S.Ct. 738 (2005), this court would

uphold a sentence imposed after revocation of supervised release unless it

violated the law or was plainly unreasonable. United States v. McKinney, 520

F.3d 425, 428 (5th Cir. 2008). In Booker, however, the Supreme Court directed

appellate courts to review sentences for reasonableness. 125 S.Ct. at 765. In the

past, this court has declined to decide the appropriate standard of review after

Booker for a sentence imposed upon revocation of supervised release, and we find

it unnecessary to do so now. McKinney, 520 F.3d at 428. Instead, we review the

sentence under both the “plainly unreasonable” and the “unreasonable”

standards. See id.

The record reflects that Odems’s sentence is neither unreasonable nor

plainly unreasonable. Odems’s underlying offense of being a felon in possession

of a firearm is a Class C felony because it carries a penalty of up to ten years of

imprisonment. 18 U.S.C. §§ 922(g), 924(a)(2), 3559(a)(3). Therefore, the
No. 07-20854

1The Chapter 7 policy statement indicated a range of 30 to 37 months, §

7B1.4(a); but, as the trial court recognized, under § 7B1.4(b)(1), where the

statutorily authorized maximum term imposable – here 24 months (18 U.S.C.

§ 3583(e)(3)) – is less than the minimum ofthe otherwise applicable range – here

30 months – “the statutorily authorized maximum term shall be substituted for

the range.” 

3

maximum statutory sentence that could be imposed for the violation of his

supervised release is 24 months. Id. § 3583(e)(3). This is also the maximum

penalty that could be imposed under the guidelines policy statement. See

U.S.S.G. § 7B1.4(b)(1), p.s.1

The district court expressly considered Odems’s medical records and his

counsel’s arguments concerning his medical condition. The court inquired about

the method of payment for his treatment and recommended to the Bureau of

Prisons that Odems be assigned to a facility where medical treatment is

available. The district court also stated that in imposing sentence it had

considered the specific sentencing objectives of § 3553(a), including punishment,

incapacitation, and deterrence. This was sufficient. See Rita v. United States,

127 S.Ct. 2456, 2469 (2007) (“The judge was fully aware of defendant’s various

physical ailments . . .” and “the record makes clear that the sentencing judge

considered the evidence and arguments . . .”).

The record reflects that the district court gave proper consideration to the

arguments of the parties, the guidelines policy statements, and the § 3553(a)

factors. The district court provided adequate reasons for the sentence imposed,

and the sentence did not exceed the statutory maximum sentence. Odems has

not shown that the sentence imposed following the revocation of his supervised

release is procedurally or substantively unreasonable or is plainly unreasonable.

See McKinney, 520 F.3d at 428. 

The district court’s judgment is 

AFFIRMED.