FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 20, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11541

Non-Argument Calendar

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D. C. Docket No. 99-00009-CR-CAR-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OMAR LATTIMORE,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(October 20, 2008)

Before BIRCH, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
Omar Lattimore appeals his 18-month sentence upon revocation of

supervised release, pursuant to 18 U.S.C. § 3583(e)(3). Because the court

considered the guidelines range as well as the factors set forth in 18 U.S.C. §

3553(a) when imposing the sentence, its sentence is procedurally reasonable.

Because Lattimore’s sentence was within the applicable guidelines range and was

reasonable in light of the 18 U.S.C. § 3553(a) factors, the sentence is substantively

reasonable. Accordingly, we AFFIRM.

I. BACKGROUND

This appeal is from the sentence the district court imposed after revoking

Lattimore’s supervised release. In June 2007, the government filed a petition for

action on Lattimore’s supervised release. See R1-93. This petition noted that

Lattimore was convicted in 2000 of possession with intent to distribute cocaine

base and sentenced to 63 months in prison and 5 years’ supervised release. The

petition further noted that Lattimore began serving his supervised release in

September 2003. In the petition, the government alleged that Lattimore had

violated the terms of his supervised release by: 1) failing to work regularly at a

lawful occupation; 2) failing to refrain from violation of the law; and 3)

unlawfully possessing a controlled substance. Id. The last two of these allegations

stemmed from Lattimore’s May 2007 arrest that resulted in his being charged with

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possession of cocaine, driving under the influence of drugs, obstruction, driving

with a revoked license, possession of marijuana, and a seatbelt violation. See id.

In February 2008, the court signed an order to amend the petition for action

on supervised release. R1-102. This order supplemented the original petition by

alleging that Lattimore committed three further violations of his supervised release:

1) failing to submit a truthful and complete written report within the first five days

of each month; 2) an additional instance of failing to refrain from violation of the

law; and 3) using a controlled substance. The second of these allegations resulted

from Lattimore’s pleading guilty to the offense of giving false information. The

last of these allegations resulted from Lattimore’s signing of an admission form, in

which he admitted that he had used cocaine, cocaine base, and marijuana from 12

May through 14 May 2007. Id.

At the revocation hearing, the court went over the six alleged violations,

and Lattimore admitted to all six violations. R2 at 2-3. Lattimore explained to the

court that his violations resulted exclusively from his addiction to drugs. Id. at 3-5.

Arguing for mitigation of his sentence, Lattimore noted that he had observed the

terms of his supervised release during long stretches of time leading up to the

violations. See id. Lattimore argued that since his violations of the supervised

release terms were related solely to his drug addiction, the court would most

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efficiently prevent further unlawful conduct by sentencing him to a term of only

minimal incarceration followed by commitment to a residential drug treatment

program. See id. at 6-10. The government remained neutral on this issue. Id. at 8.

Lattimore also made a personal statement to the court, stating that he had tried his

best to maintain employment and observe the other terms of his supervised release,

but that his addiction “got the best of [him].” Id. at 8-9. The district court noted

that Lattimore had received treatment for drug addiction in the past and that such

treatment had been unsuccessful. Id. at 7.

The court revoked Lattimore’s supervised release and sentenced him to 18

months’ imprisonment. Id. at 10-11. In imposing this sentence, the court

recognized that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005), it was required to consider the sentencing guidelines, but was

not bound to apply them. Id. at 10. The court noted that the guidelines

imprisonment range was 18 to 24 months because Lattimore had an original

criminal history category of V and had committed a grade B violation of his

supervised release. Id. The court further stated that it found that its sentence was

appropriate in light of the factors set forth in 18 U.S.C. § 3553(a) and under the

totality of the circumstances. Id. at 11. The court then asked the parties if there

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were any objections to the sentence or the manner in which it was imposed, and

neither side objected. Id. at 12.

II. DISCUSSION

On appeal, Lattimore contends that the district court imposed an

unreasonable sentence upon revocation of his supervised release. Lattimore argues

that his sentence was unreasonable in substance because it failed to provide him

with needed correctional treatment or protect the public from potential further

crimes as required by 18 U.S.C. § 3553(a)(2)(C) and (D). Lattimore appears to

argue that his sentence was procedurally unreasonable because the court did not

consider whether its sentence would promote respect for the law or provide just

punishment as required by section 3553(a)(2)(A).

We review a sentence imposed upon revocation of supervised release for

reasonableness. Gall v. United States, 552 U.S. __, __, 128 S.Ct. 586, 594, 169

L.Ed.2 445 (2007); United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.

2006). Review for reasonableness is deferential. United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). The reasonableness of a sentence is reviewed under an

abuse-of-discretion standard. United States v. Pugh, 515 F.3d 1179, 1190 (11th

Cir. 2008) (citing Gall, 552 U.S. at __, 128 S.Ct. at 597). Under the abuse-ofdiscretion standard, we will only reverse if the district court made a clear error of

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judgement. Id. at 1191. Although the government appears to argue that Lattimore

did not timely object in this case, it does not specifically argue that plain error

review applies. However, we need not address whether plain error applies because,

even under the abuse-of-discretion standard, there was no reversible error.

“After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d

621 (2005), a sentence may be reviewed for procedural or substantive

unreasonableness.” United States v. Hunt, 459 F.3d 1180, 1182, n.3 (11th Cir.

2006). “A sentence may be unreasonable if it is the product of a procedure that

does not follow Booker’s requirements, regardless of the actual sentence.

Additionally, a sentence may be substantively unreasonable, regardless of the

procedure used.” Id.

A sentence is procedurally unreasonable if the district court failed to

calculate or incorrectly calculated the guidelines, treated the guidelines as

mandatory, failed to consider the § 3553(a) factors, selected a sentence based on

clearly erroneous facts, or failed to explain adequately the chosen sentence. Gall,

552 U.S. at , 128 S.Ct. at 597. Under 18 U.S.C. § 3583(e), a district court may,

upon finding by a preponderance of the evidence that a defendant has violated a

condition of supervised release, revoke the term of supervised release and impose a

term of imprisonment after considering certain factors set forth in 18 U.S.C. §

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3553(a). Section 3553(a) provides that district courts imposing a sentence must

first consider, among other things:

(1) the nature and circumstances of the offense; (2) the history and

characteristics of the defendant; (3) the need for the sentence to reflect

the seriousness of the offense, promote respect for the law, and

provide just punishment for the offense; and (4) the kinds of sentences

and sentencing range established by the Guidelines, and in the case of

a violation of supervised release, the applicable Guidelines or policy

statements issued by the Sentencing Commission.

Sweeting, 437 F.3d at 1107. A district court need not discuss each of the

§ 3553(a) factors in order to satisfy the requirement of procedural reasonableness.

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

In considering the substantive reasonableness of a sentence, we employ an

abuse of discretion standard. Gall, 552 U.S. at ___, 128 S.Ct. at 597. The party

challenging the sentence “bears the burden of establishing that the sentence is

unreasonable in the light of [the] record and the factors in section 3553(a).”

Talley, 431 F.3d at 788. We have recognized that “there is a range of reasonable

sentences from which the district court may choose.” Id. Where the court imposes

a sentence that is within the guidelines range, we ordinarily expect that sentence to

be reasonable. Id.

While it is not clear that Lattimore argues that his sentence is procedurally

unreasonable, he does assert that the court failed to consider whether its sentence

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would promote respect for the law or be perceived as just. To the extent that

Lattimore is arguing that his sentence is procedurally unreasonable, his argument

fails. Neither party alleges that the court failed to calculate or incorrectly

calculated the guidelines range, or that the court imposed its sentence based upon

clearly erroneous facts. Upon imposing sentence, the court expressly noted that the

sentencing guidelines are not mandatory. R2 at 10. The court also expressly stated

that it had considered the § 3553(a) factors. Id. at 11. The fact that the court did

not discuss each and every § 3553(a) factor does not cause its sentence to be

procedurally unreasonable. See Scott, 426 F.3d at 1329. Moreover, the court

adequately explained its sentence. Not only did the court expressly state that it had

considered the applicable guideline range and the § 3553(a) factors, but the court

also noted Lattimore’s unsuccessful history with drug treatment programs. R2 at

7, 10-11. As a result, the court’s sentence is not procedurally unreasonable.

Lattimore has failed to meet his burden of establishing that his sentence is

substantively unreasonable in light of the record and § 3553(a) factors. Although

Lattimore was largely compliant with the terms of his supervised release from 23

September 2003, to 14 May 2007, at the end of this period of time he violated the

terms of his release by, among other things, driving under the influence, possessing

a controlled substance, using a controlled substance, failing to work regularly at a

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lawful occupation, and failing to submit truthful and complete monthly written

reports. See R2 at 2-3; See also R1-93. Lattimore had also demonstrated an

unsuccessful history with drug treatment programs. R2 at 7. Moreover, the court

sentenced Lattimore at the low end of the applicable guideline range. See id. at 10-

11; U.S.S.G. § 7B1.4. As a result, the district court did not abuse its discretion in

imposing an 18-month sentence upon its revocation of Lattimore’s supervisory

release.

III. CONCLUSION

For the reasons stated above, Lattimore has failed to demonstrate that the

district court’s 18-month sentence is either procedurally or substantively

unreasonable. Accordingly, we AFFIRM Lattimore’s sentence.

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