[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-11781

Non-Argument Calendar

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D.C. Docket No. 1:99-cr-00272-FAM-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

KEITH WHITTINGHAM, 

a.k.a. Dennis Delary Brown,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(November 27, 2013)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM: 

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Keith Whittingham appeals his 24-month sentence, imposed after the court 

determined that he had violated the terms of his supervised release.

After a conviction for illegal re-entry into the United States in violation of 8 

U.S.C. § 1326(a), Whittingham was sentenced on January 6, 2000, to a term of 

incarceration of 120 months and three years of supervised release. On December 

7, 2010, during his supervised release term, Whittingham was arrested for 

aggravated battery on an elderly person, a charge of which he was later acquitted in 

state court. He spent two years in county jail before the commencement of his trial 

on December 11, 2012. The state court entered a judgment of acquittal on 

December 12, 2012.

On December 27, 2010, the United States Probation Office filed a petition 

for a warrant for the defendant’s arrest based on Whittingham’s violation of the 

condition of his supervised release that he refrain from violation of the law. After 

a supervised release violation hearing on March 14, 2013, the district court ruled 

on April 16, 2013, that the defendant violated his supervised release. The district 

court sentenced Whittingham to 24 months in federal prison without crediting him 

for time served in state custody.

On appeal, Whittingham argues that the district court erred by refusing to 

credit him for time served in state custody prior to his acquittal. Whittingham 

relies on U.S.S.G. § 5G1.3 (instructing courts on how to sentence a defendant 

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subject to an undischarged term of imprisonment), and United States v. Descally, 

254 F.3d 1328, 1333 (11th Cir. 2001) (vacating the defendant’s sentence because 

the district court had failed to apply U.S.S.G. § 5G1.3, cmt. n.2, in order to account 

for time served in state custody for a related crime). He also briefly mentions 18 

U.S.C. § 3585 as support.

A district court may revoke a defendant’s supervised release upon finding by 

a preponderance of the evidence that the defendant violated a condition of 

supervised release. 18 U.S.C. § 3583(e)(3). We review a federal sentence 

imposed upon revocation of supervised release for reasonableness. United States 

v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir. 2006) (per curiam). In reviewing 

reasonableness, “[w]e look first 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.” United States v. Tome, 611 

F.3d 1371, 1378 (11th Cir. 2010). And a prisoner seeking reduction of his 

sentence pursuant to 18 U.S.C. § 3585(b) must exhaust administrative remedies 

before petitioning for judicial review under 28 U.S.C. § 2241. United States v. 

Williams, 425 F.3d 987, 990 (11th Cir. 2005) (per curiam).

Whittingham challenges his sentence only for procedural unreasonableness, 

specifically for the failure to reduce his sentence for time served pursuant to § 

5G1.3. The applicable sentencing guideline, however, is U.S.S.G. § 7B1.4. 

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U.S.S.G. § 7B1.3(b) (“In the case of a revocation of . . . supervised release, the 

applicable range of imprisonment is that set forth in § 7B1.4.”). Whittingham’s 

reliance on § 5G1.3 is misplaced because it applies to defendants who have 

undischarged terms of imprisonment, U.S.S.G. § 5G1.3, and he had no 

undischarged term of imprisonment. Whittingham’s Grade A violation and his 

criminal history category of VI give him a 33–41 month range of imprisonment. 

U.S.S.G. § 7B1.4. Because the statutory maximum for a supervised release 

violation is two years where, as here, the offense that resulted in the term of 

supervised release is a class C felony, 18 U.S.C. § 3583(e)(3), the term of 

imprisonment imposed by the district court is appropriate and reasonable.

In addition, we dismiss the § 3585(b) issue for lack of ripeness because 

Whittingham has not exhausted his administrative remedies. Williams, 425 F.3d at 

990.

Upon review of the record and consideration of the parties’ briefs, we 

affirm.

AFFIRMED.

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