FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 26, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11844

________________________

D. C. Docket No. 04-00023-CR-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

versus

HAROLD OATNEAL,

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(January 26, 2006)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:
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Harold Oatneal appeals the 30-month sentence imposed after revocation of

his supervised release on the ground that the district court failed to consider the

Chapter 7 policy statements at U.S.S.G. § 7B1.4. 

Since Oatneal raised his sentencing argument for the first time on appeal, we

review it for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.

2000). We will, in our discretion, correct plain error where there is (1) error, (2)

that is plain, and (3) that affects substantial rights, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings. United

States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, (U.S. June 20,

2005) (No. 04-1148) (internal citations and quotations omitted).

Upon finding that a defendant violated supervised release, the district court

may revoke the term of supervised release and impose a term of imprisonment after

considering various factors set out in 18 U.S.C. § 3553(a). 18 U.S.C. § 3583(e). 

The term imposed cannot exceed the statutory maximum, which is determined by

the class of the violation. Id. Relevant factors in determining the length of

imprisonment upon revocation include the nature and circumstances of the offense,

the history and characteristics of the defendant, the need for the sentence imposed

to afford adequate deterrence to criminal conduct, and the kinds of sentences and

sentencing ranges established under the applicable guidelines and policy statements
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issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(1), (2)(B), (4)(B). The

sentencing court “shall state in open court the reasons for its imposition of a

particular sentence, and, if the sentence . . . is not of the kind, or is outside the

range, described in subsection (a)(4), the specific reason for the imposition of a

sentence different from that described.” 18 U.S.C. § 3553(c)(2). 

Chapter 7 of the Sentencing Guidelines governs violations of supervised

release and contains policy statements, one of which provides recommended ranges

of imprisonment applicable upon revocation. U.S.S.G. § 7B1.4(a). This Court has

consistently held that the policy statements of Chapter 7 are merely advisory and

not binding. Aguillard, 217 F.3d at 1320. While the district court is required to

consider the policy statements, it is not bound by them. United States v. Brown,

224 F.3d 1237, 1242 (11th Cir. 2000). When exceeding the recommended range,

the court normally must indicate that it considered the Chapter 7 policy statements. 

Aguillard, 217 F.3d at 1320. Nevertheless, it is “enough that there is some

indication the district court was aware of and considered them.” Id. (emphasis

added).

Based on the “some indication” test in Aguillard, we conclude that the

district court here did not commit error in imposing a 30-month sentence on

Oatneal. At the hearing, the government commented that “the guideline range in
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the case is . . . six to twelve months, the statutory maximum is three years,” and

then made a recommendation of two years’ imprisonment. Oatneal’s attorney stated

that two years was excessive and the district court replied that the government’s

recommendation “may be lenient.” Although the district court did not explicitly

mention Chapter 7 or the recommended guideline range, it was aware of the range

because the government had informed the court. The district court implicitly

rejected the guideline range when it noted that the government’s recommendation

of two years was “lenient.” Furthermore, the district court announced in open court

its specific reason for imposing a 30-month sentence, as is required by §

3553(c)(2). Therefore, the district court committed no error in sentencing Oatneal.

 Even if Oatneal could demonstrate that the district court erred by failing to

consider the Chapter 7 guideline range, he could not meet the third prong of plain

error review. Oatneal has not shown that his sentence would have been different

absent the error. The record does not reveal prejudice to Oatneal’s substantial

rights. The government explained its reasons for seeking a sentence beyond the

advisory range, and the court heard this explanation. The government demonstrated

that Oatneal had repeatedly violated his supervised release, despite prior hearings

and several accommodations. The district court stated its reason for imposing a 30-

month sentence. The sentence imposed by the district court was less than the
 Oatneal’s request for oral argument is denied. 1

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statutory maximum. Because Oatneal cannot demonstrate that the district court

failed to consider the Chapter 7 policy statements and because Oatneal’s substantial

rights were not affected, we affirm.

AFFIRMED.1