FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 31, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-16327

Non-Argument Calendar

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D. C. Docket No. 04-00262-CR-2-LSC-TMP

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

GERALD BERNARD FORD, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(May 31, 2006)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Gerald Bernard Ford appeals his 24-month sentence imposed after
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revocation of his supervised release, pursuant to 18 U.S.C. § 3583(e). After

review, we affirm.

I. BACKGROUND

Ford was convicted of being a felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g)(1). Ford was sentenced to 12 months’ imprisonment and

three years’ supervised release. Ford had a history of substance abuse, and much

of his criminal history stemmed from alcohol and drug-related offenses. Ford had

tested positive for cocaine while on bond awaiting his sentencing. Thus, the

conditions of Ford’s supervised release included that he not commit another

federal, state or local crime, that he not possess or use a controlled substance and

that he participate in the Drug and Alcohol Intensive Counseling and Aftercare

Service Program.

Three months after Ford’s supervised release began, his probation officer

petitioned the district court to revoke his release on two grounds: (1) Ford had been

arrested on two state misdemeanor charges, and (2) Ford had admitted to using

cocaine and marijuana.

At the revocation hearing, Ford admitted the violations, and the district court

found that Ford had violated the conditions of his release. The probation officer

recommended a five-month sentence followed by six months in a halfway house to
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receive drug treatment. The district court, however, noted that, if Ford was

sentenced to the statutory maximum of 24 months’ imprisonment, he would be

eligible for the 500-hour intensive inpatient drug treatment program offered by the

Bureau of Prisons (“BOP”). The probation officer described the 500-hour program

as “probably the most comprehensive and extensive program that [is] available

within [the] system.”

Noting Ford’s history of substance-abuse-related offenses, the district court

stated that it wanted the best sentencing option to keep Ford off drugs so he would

stop offending. The district court asked Ford whether he was presently “clean” or

“dirty.” Ford responded that he was “clean” for both cocaine and marijuana. The

district court recessed so that a drug test could be conducted. The test came back

positive for cocaine. Ford did not contest this finding.

When the revocation hearing resumed, the district court stated that, because

Ford had lied to the court, had failed to participate in the drug treatment offered

during his release and had a history of substance-abuse crimes, it saw no reason not

to impose a 24-month sentence and reiterated that it wanted Ford to get drug

treatment. Because Ford committed Grade C violations and had a criminal history

category of III, the district court concluded that the applicable advisory Guidelines

range was 5 to 11 months’ imprisonment. 
Factors the district court must consider include the nature and circumstances of the 1

offense; the history and characteristics of the defendant; the need for the sentence imposed to

afford adequate deterrence to criminal conduct, protect the public from further crimes of the

defendant, and provide the defendant with needed correctional treatment in the most effective

manner; and the kinds of sentences and sentencing ranges established under the applicable

guidelines and policy statements issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(1),

(2)(B)-(D), (4)(B).

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The district court then imposed a 24-month sentence with the

recommendation that Ford be evaluated and allowed to participate in the 500-hour

program. When Ford asked for reconsideration, the district court stated that a 24-

month sentence was the best way to accomplish the goals of keeping Ford from

committing more offenses and providing him with drug abuse treatment. Ford

filed this appeal.

II. DISCUSSION

Upon finding that a defendant violated a condition of supervised release, the

district court may revoke the term of supervised release and impose a term of

imprisonment after considering various factors set forth in 18 U.S.C. § 3553(a).

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18 U.S.C. § 3583(e). A court may consider a defendant’s rehabilitative needs

when imposing imprisonment following revocation of supervised release. United

States v. Brown, 224 F.3d 1237, 1242 (11 Cir. 2000) (concluding that imposition th

of statutory maximum prison sentence in order for defendant to get in-house drug

treatment was not an abuse of discretion). The sentencing court “shall state in

open court the reasons for its imposition of a particular sentence, and, if the
We review a sentence imposed upon revocation of supervised release for 2

reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11 Cir. 2006) (explaining th

that the reasonableness standard applied after United States v. Booker, 543 U.S. 220, 125 S. Ct.

738 (2005), is essentially the same as the pre-Booker “plainly unreasonable” standard). We

review for abuse of discretion a district court’s decision to impose a sentence above the range

recommended by Chapter 7 of the Sentencing Guidelines. Brown, 224 F.3d at 1239.

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sentence . . . is not of the kind, or is outside the [guideline] range, . . . the specific

reason for imposition of a sentence different from that described . . . .” 18 U.S.C.

§ 3553(c)(2). 

The district court must also consider the policy statements in Chapter 7 of

the Sentencing Guidelines, one of which provides recommended ranges of

imprisonment. Brown, 224 F.3d at 1242. Because these policy statements are

advisory and nonbinding, the district court is not required to sentence within the

range recommended by Chapter 7. Id. The district court is constrained, however,

by 18 U.S.C. § 3583(e), which provides maximum sentences for supervised release

violators.2

With Grade C violations and a criminal history category of III, Ford’s

recommended Guidelines range under advisory Chapter 7 was 5 to 11 months’

imprisonment. See U.S.S.G. § 7B1.4(a). Because Ford’s original offense was a

Class C felony, his maximum statutory term of imprisonment upon revocation of

supervised release was two years. See 18 U.S.C. § 3583(e)(3).

Under the factual circumstances of this case, we conclude that the district
In addition, the district court expressed concern about imposing a sentence below 24 3

months because, if Ford again violated the terms of his supervised release, the available sentence

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court’s decision to sentence Ford outside the advisory Guidelines range was not an

abuse of discretion and that Ford’s two-year sentence was not unreasonable. The

district court gave reasons supported by the record, including Ford’s need for drug

treatment, for imposing a sentence above the recommended range, as required by §

3553(c)(2). See Brown, 224 F.3d at 1240 & n.1(concluding that district court may

properly consider supervised release violator’s need for drug treatment in

determining length of sentence). The district court also considered the § 3553(a)

factors in selecting a two-year sentence, including Ford’s characteristics and

history of drug abuse and drug-related crimes, the need for deterrence, the need to

protect the public from further crimes by Ford, and the most effective manner of

obtaining drug treatment for Ford.

Ford’s argument that the district court imposed a sentence less likely to

obtain drug treatment for him is not supported by the record. Indeed, it appears

more likely that Ford will get effective drug treatment with the sentence imposed

by the district court. The probation officer stated that the BOP’s 500-hour program

was the most comprehensive and extensive within the prison system. As noted,

Ford had failed to attend the outpatient treatment required as part of his supervised

release and had been using drugs while on supervised release. Furthermore, the 3
would be under 24 months, which would make Ford ineligible for the 500-hour program.

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choice between the two treatment alternatives was within the district court’s

discretion.

We affirm Ford’s two-year sentence.

AFFIRMED.