* The Honorable S. Arthur Spiegel, United St ates District Court Judge for the Southern District of Ohio, sitting by designation. NOT FOR PUBLICATION

File Name: 06a0510n.06 Filed: July 20, 2006 NO. 05-2190 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA Plaintiff-Appellee, v. ON APPEAL FROM THE UNITED STATES DISTRICT TIMOTHY L. SOTO, CO URT FOR THE EASTERN Defendant-Appellant. DISTRICT OF MICHIGAN

___________________________________/ BEFORE: SUHRHEINRICH and GRIFFIN, Ci rcuit Judges, and SPIEGEL, District Judge. * SUHRHEINRICH, J., Defendant-Appellant Timothy Soto appeals the judgment of the district court sentencing him to a term of im prisonment of twenty-four months for violating conditions of his supervised release, including a state conviction for recei ving and concealing stolen property. For the reasons that follow, we AFFIRM

. I. On September 2, 2003, Soto pleaded guilty to a ssaulting, resisting, or impeding officers, in violation of 8 U.S.C. § 111(b), and to possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). The district court sentenced him to a term of imprisonment of twenty-four months–the very lowest end of the appropriate Sentencing Guidelines range–to be followed by three years of supervised release. The relatively sh ort sentence reflected the court and Soto’s mutual1 The state of Michigan had charged Soto w ith receiving and concealing a stolen motor vehicle and with fleeing and eluding in the third degr ee. As part of a plea agreement, the state agreed to drop the charge of fleeing and eluding. -2- understanding that Soto would be subject to the di strict court’s own “zero tolerance” policy after his release. Soto appealed the district court’s deni al of his motion to suppress evidence in that case. A different panel of this Court affirmed. See United States v. Soto , 124 F. App’x 956 (6th Cir. Mar. 7, 2005) (unpublished opinion). Soto’s supervised release commenced on September 10, 2004. Soto began violating the terms of his supervised release shortly thereafter. Specifically, he stopped reporting for drug testing and stopped physically reporting to the probation de partment in early December 2004; he quit his full-time job around January 1, 2005 and did not proc ure further employment; he failed to submit required written monthly reports for January and February 2005; and he failed to keep probation informed of his change of address. As a result, on March 23, 2005, Soto’s probation officer sought a warrant for Soto’s arrest, which the district court signed. On August 22, 2005, the probation officer supplemented the violations report to include Soto’s intervening state court conviction for receiving and concealing stolen property. 1 At sentencing, Soto requested a sentence with in the recommended Guidelines range of 8-14 months that would run concurrently with his state se ntence. In support, he cited his age (21) and his need for vocational training and drug treatment. The district court, noting its “zero tolerance” policy with Soto and finding “acute . . . vi olation[s] of almost everything [the court] talked to [Soto] about at the time of [his original] sentencing,” adopt ed the recommendation of the government that Soto serve the statutory maximum of twenty-four months consecutive to his state sentence. This timely appeal followed.2 Other courts have concluded, in light of the Supreme Court’s decision in United States v. Booker , 543 U.S. 220 (2005), that the proper standard of review in supervised release revocation cases is “reasonableness.” See United States v. Tedford , 405 F.3d 1159, 1161 (10th Cir. 2005); United States v. Cotton , 399 F.3d 913, 916 (8th Cir. 2005); United States v. Fleming , 397 F.3d 95, 99 (2d Cir. 2005); see also United States v. Turner , 133 F. App’x 711, 715 ( 11th Cir. June 7, 2005) (unpublished). In United States v. Johnson , 403 F.3d 813 (6th Cir. 2005), however, this Court in dicta questioned the Second Circuit’s reasoning in Fleming and appeared to favor adherence to the pre- Booker “plainly unreasonable” standard of review. See id. at 816-17 (“[T]he Second Circuit’s interpretation [of Booker] . . . fails to account for the fact that Booker left sections 3742(a), 3742(b), and 3742(f) on the books, and it fails to account for the fact that (at least as far as our Circuit is concerned) our cases have relied upon both sections 3742(a)(4) and 3742(e)(4) in applying a ‘plainly unreasonable’ standard.”). But whether Booker compels a “reasonableness” standard rather than a “plainly unreasonable” standard need not be decided in this case. See United States v. Kirby , 418 F.3d 621, 625 n.3 (6th Cir. 2005) (declining to decide Booker ’s effect on the proper standard of review); Johnson , 403 F.3d at 817 (same). Whatever the di fferences, we would affirm under either standard. -3- II. The sole issue on appeal is whether the district court erred in sentencing Soto to a term of imprisonment of twenty-four months for violating the terms of his supervised release. A sentence imposed upon revocation of supervised release is reviewed for abuse of discretion. United States v. Webb , 30 F.3d 687, 688 (6th Cir. 1994). Th is Court will affirm provided the district court’s decision reflect s consideration of the relevant st atutory factors and is not plainly unreasonable. 2 United States v. McClellan , 164 F.3d 308, 309 (6th Cir. 1999); see also United States v. Washington , 147 F.3d 490, 491 (6th Cir. 1998). In imposing a term of imprisonment following re vocation of supervised release, the district court is required to consider the relevant po licy statements of the Sentencing Guidelines. McClellan , 164 F.3d at 310. In addition, the district court must also consider the relevant statutory factors found in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e). Those factors include “the nature and circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C. §-4- 3553(a)(1), “the need . . . to reflect the seriousne ss of the offense, to promote respect for the law, and to provide just punishment for the offense,” § 3553(a)(2)(A), “the need . . . to afford adequate deterrence to criminal conduct,” § 3553(a)(2)(B), and “the need . . . to pr ovide the defendant with needed . . . medical care . . . or other correctio nal treatment in the mo st effective manner,” § 3553(a)(2)(D). However, the “‘court need not engagein ritualistic incantation in order to establish consideration.’” Washington , 147 F.3d at 491 (quoting United States v. Davis , 53 F.3d 638, 642 (4th Cir. 1995)). Instead, “[t]he statute’s mandate is . . . satisfied if . . . the district court’s explanation of the sentence makes it clear that it considered the required factors.” Id. Here, the district court considered the relevant sentencing factors. There is no question that the court considered the recommended range in th e Sentencing Guidelines. At sentencing, counsel for Soto argued at length for a sentence within the Guidelines range. More importantly, the district court, in imposing sentence, stated its “belie[f] that the guidelines . . . aren’t appropriate in this particular matter.” As for the consideration of the nature and circumstances of the offense; the history and characteristics of the defendant; the need to deter criminal conduct; and the need to reflect the seriousness of the offense, to promote respect for th e law, and to provide just punishment, the district court said the following: In this matter the Court recalls this cas e. I don’t recall very many, but I remember this case, not every detail of the case, but wanted [sic] to give you a break and I gave you a break at the low end of the guidelines. And we talked about that, and I talked about zero tolerance and I remember specifically talking about zero tolerance, saying once you get out you’d better conduct yourself in the manner that you’re supposed to and you didn’t. It’s just that easy. No t only did you didn’t [sic], but it wasn’t just a minor kind of thing. You picked up another criminal activity. You didn’t report. You didn’t do anything particularly that you’re supposed to be doing. And you’re still young, and you do have a child on the way, and life is pressure. . . . You have to learn to adjust to that pressure, and part of adjusting to that pressure is to get some3 Soto’s original sentence was twenty-four months, but he was given credit for the one year he spent in jail awaiting trial and sentencing. -5- help. You need some help, and I’m going to try to get you some help if I can. The Court believes that because of the fact that the defendant was placed on zero tolerance and that the violation was very acute, not just some technical violation, but a violation of almost everything I talked to him about at the time of sentencing. . . . The Court believes that the maximum sentence is appropriate in this matter. . . . And I understand being in the County Jail is not an easy thing, but that will give you eleven months to really havethe space to think about it. And then you’ll have two years in the federal system to get you to think about it . . . . Soto also argues that the district court di d not adequately account for his need for drug treatment. We disagree. At the close of the se ntencing hearing, the district court denied Soto’s request to be placed at the federal prison in Milan, which has a substance abuse program, because the court wanted Soto to take the initiative himsel f to prove that he is sincere about getting help. Moreover, the sentence Soto argues the district court should have imposed would have actually made it nearly impossible for him to receive treatment. At sentencing, defense counsel stated that Soto was unable to receive treatment during his original term of imprisonment because he was scheduled to be in prison for only one year. 3 Since the waiting list for the drug treatment program was longer than one year, Soto was released before he could take advantage of it. Had the district court adopted Soto’s recommendation of 8-14 months , served concurrently with his eleven-month state term of imprisonment, however, Soto would have had, at most, three months in federal prison. If one year was not long enough for Soto to receive treatment, three months certainly would not have been long enough. Having determined that the district court prope rly considered the Sentencing Guidelines and the relevant statutory factors, we must now de termine whether the sentence imposed was plainly-6- unreasonable. The district court granted Soto leni ency in his original sentence. Soto responded by violating five different terms of his supervised release. The violations included the commission of another crime, in which Soto fled and eluded poli ce who were trying to arrest him for receiving and concealing a stolen car. In light of that incident , the district court was unconvinced that Soto had been rehabilitated. Accordingly, the district court sentenced him to the maximum term of imprisonment, which, according to the district court, gives Soto an opportunity to think about what he wants to do with his life and to think seriously about seeking treatment. Based on this record, we cannot say that a sentence that exceeded the advisory Guidelines range by ten months was unreasonable or plainly unreasonable. Cf. Kirby , 418 F.3d at 628 (affirming a sentence eleven months above the advisory Guidelines range based on multiple violations of the defendant’s supervised release and her “repeated [criminal] transgressions”); Johnson , 403 F.3d at 814, 817 (affirming a sentence eight months above the a dvisory Guidelines range where the defendant “violated several terms of his supervised release, forged documents to cover his violations, and lied to his probation officer”). Because the district court considered the re levant statutory factors and the sentence was neither unreasonable nor plainly unreasonable, we must affirm. See McClellan , 164 F.3d at 309; Washington , 147 F.3d at 491.
III. For the foregoing reasons, the judgment of the district court is AFFIRMED

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