[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-15661

Non-Argument Calendar

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D.C. Docket No. 8:11-cr-00263-SDM-TGW-1

KENTON D. PURVIS, 

 Defendant-Appellant,

 versus

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

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(July 14, 2015)

Before MARCUS, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM: 

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Kenton Purvis appeals his 24-month sentence, imposed for violating 

conditions of his supervised release. Purvis raises three issues on appeal, which we 

address in turn. After review, we affirm Purvis’s sentence.

I. DISCUSSION

As the parties are familiar with the facts of this case, we will not recount 

them in detail. We include only those facts necessary to the discussion of each 

issue.

A. Felon in possession of firearm charge

Purvis first asserts the district court committed plain error by considering 

that he was originally indicted for, but not convicted of, a charge of being a felon 

in possession of a firearm in its imposition of sentence. 

Where, as here, a defendant does not raise an objection to the district court’s 

consideration of an impermissible factor at the time of sentencing, this Court 

reviews for plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th 

Cir. 2014). Plain error occurs when there is (1) an error, (2) that is plain, (3) that 

affect substantial rights, and (4) that error seriously affects the fairness or integrity 

of judicial proceedings. United States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 

2010). “A substantial right is affected if the appealing party can show that there is 

a reasonable probability that there would have been a different result had there 

been no error.” United States v. Bennett, 472 F.3d 825, 831-32 (11th Cir. 2006). 

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The district court is free to consider any information relevant to a 

defendant’s “background, character, and conduct” in imposing an upward variance. 

United States v. Tome, 611 F.3d 1371, 1379 (11th Cir. 2010) (holding it was proper 

for the district court to take into account a withheld adjudication in imposing an 

upward variance because it was relevant to the defendant’s background, character, 

and conduct). However, the district court may take uncharged or acquitted conduct 

into account in sentencing only if such conduct is proven by a preponderance of 

the evidence. United States v. Faust, 456 F.3d 1342, 1347-48 (11th Cir. 2006). 

The district court did not commit plain error. Although the district court did 

not make a finding the prior charge was proven, there was no substantial rights 

violation because Purvis admitted facts establishing his guilt as to that prior charge. 

His plea agreement included his admission the police recovered a firearm from him 

when he was arrested following a controlled drug buy. In addition, the presentence 

investigation report (PSI), to which he did not object, stated he was a felon and 

possessed a firearm while his rights had not been restored. See Bennett, 472 F.3d 

at 832 (“A sentencing court’s findings of fact may be based on undisputed 

statements in the PSI.”); United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 

2006) (stating a defendant who does not object to the facts in the PSI is deemed to 

have admitted them for sentencing purposes). As a result, Purvis cannot establish 

plain error. 

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B. Need for rehabilitation

Next, Purvis contends the district court abused its discretion by improperly 

considering his welfare and rehabilitation when imposing its sentence of 

imprisonment. He explains the district court stated it sentenced Purvis based on 

the need to “protect him from himself” and “give him the maximum time available 

to regain his sobriety.”

As an initial matter, Purvis failed to preserve this argument before the 

district court because he did not inform the district court of the legal basis he now 

argues. “[F]or a defendant to preserve an objection to her sentence for appeal, she 

must raise that point in such clear and simple language that the trial court may not 

misunderstand it. When the statement is not clear enough to inform the district 

court of the legal basis for the objection, we have held that the objection is not 

properly preserved.” United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) 

(quotation and citation omitted). We applied plain error review in Vandergrift, 

where the appellant argued on appeal that the district court improperly considered

rehabilitation in sentencing him to imprisonment, but did not do so before the 

district court. 754 F.3d at 1307, 1309-1312.

In Tapia v. United States, 131 S. Ct. 2382, 2391 (2011), the Supreme Court 

held a sentencing court may not impose or lengthen a prison term in order to 

promote an offender’s rehabilitation. In Vandergrift, we extended Tapia’s holding 

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to a term of imprisonment imposed after the revocation of supervised release. 

Vandergrift, 754 F.3d at 1309. 

In Vandergrift, the defendant served a prison sentence for possession and 

distribution of child pornography. Id. at 1305. His supervised release was later 

revoked and the district court sentenced him to 24 months’ imprisonment. Id. at 

1306. We determined the district court erred in considering rehabilitation when it 

imposed Vandergrift’s sentence and assumed for the sake of analysis the error was 

plain. Id. at 1310-12. Nevertheless, we affirmed because Vandergrift had failed to 

prove the third prong of the plain error test—the error affected his substantial 

rights. See id. at 1312. Specifically, Vandergrift failed to show his sentence would 

have been different, because the sentencing transcript reflected that his 

rehabilitative needs constituted only a minor portion of the district court’s 

reasoning. Id. We explained, “[t]he [district] court’s primary considerations were 

for the safety of the public and deterring others from similar conduct.” Id.

We will assume without deciding that the district court committed error that 

is plain by considering rehabilitation in imposing Purvis’s sentence. However, 

Purvis has not established this error affected his substantial rights by showing a 

reasonable probability he may have received a lower sentence but for the district 

court’s error. Like the court in Vandergrift, the district court considered 

rehabilitation in imposing a sentence of imprisonment, but this consideration only 

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reflected a minor portion of the court’s reasoning. The district court primarily 

focused on the seriousness and continuing nature of Purvis’s violations, public 

safety, and the need to deter him from further criminal activity. Therefore, Purvis 

cannot establish plain error.

C. Substantive reasonableness

Purvis argues his 24-month sentence is substantively unreasonable. We 

review the reasonableness of a sentence using a deferential abuse of discretion 

standard. Gall v. United States, 552 U.S. 38, 41 (2007). 

If a defendant violated a condition of supervised release, the district court 

may, after considering certain factors set forth in § 3553(a), revoke the supervised 

release, and impose a term of imprisonment on the defendant for the offense that 

resulted in the term of supervised release. 18 U.S.C. § 3583(e)(3). These factors 

include the nature and circumstances of the offense and the history and 

characteristics of the defendant, the need for the sentence imposed to afford 

adequate deterrence to criminal conduct and to protect the public from further 

crimes of the defendant, the applicable guideline range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted 

sentencing disparities, and the need to provide restitution to victims. 18 U.S.C. 

§ 3553(a)(1), (a)(2)(B)-(C), (a)(4)-(7).

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The district court did not abuse its discretion in sentencing Purvis to an 

above-the-guidelines, statutory maximum sentence of 24 months’ imprisonment. 

While Purvis received a sentence at the statutory maximum, well above the top-end 

of the advisory guidelines range of 8 to 14 months, above-guidelines sentences do 

not result in a presumption of unreasonableness. See Gall, 552 U.S. at 47. While 

the district court must have a justification compelling enough for an upward 

variance to the statutory maximum, “we will vacate such a sentence only if we are 

left with the definite and firm conviction that the district court committed a clear 

error of judgment in weighing the § 3553(a) factors by arriving at a sentence that 

lies outside the range of reasonable sentences dictated by the facts of the case.”

United States v. Early, 686 F.3d 1219, 1221 (11th Cir. 2012). Here, the district 

court presented a justification compelling enough for an upward variance to the 

statutory maximum.

It is uncontested the district court adjudicated Purvis in violation of his 

supervised release based on six violations. Despite receiving a continuance of his 

initial revocation hearing with a warning he would go to prison if he committed 

another violation, Purvis not only continued to violate his supervised release, but 

committed one of the same violations as he did earlier (testing positive for 

marijuana). Furthermore, several of the later violations were of a serious nature,

including fleeing from the police, which placed the police officers and bystanders 

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in danger. Purvis’s sentence reflected the nature and circumstance of the offense, 

the need to protect the public from his actions, and the need to deter him from 

further criminal activity after his repeated violations of supervised release. See 18 

U.S.C. § 3553(a)(1), (a)(2)(B)-(C). As a result, Purvis’s sentence is not a clear 

error of judgment and not outside the range of reasonable sentences in light of the 

totality of the circumstances and § 3553(a) factors. See United States v. Irey, 612 

F.3d 1160, 1189 (11th Cir. 2010) (en banc) (explaining a district court abuses its 

discretion and imposes a substantively unreasonable sentence when it fails to 

afford consideration to relevant factors that were due significant weight, gives 

significant weight to an improper or irrelevant factor, or commits a clear error of 

judgment in considering the proper factors). Purvis’s sentence is substantively 

reasonable.

II. CONCLUSION

Accordingly, Purvis’s sentence is AFFIRMED.

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