Case: 14-10788   Date Filed: 09/09/2014   Page: 1 of 6


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-10788
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 2:10-cr-00193-MEF-SRW-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

ALVIN TOLES,

                                                            Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Alabama
                         ________________________

                               (September 9, 2014)

Before WILSON, ROSENBAUM, and FAY, Circuit Judges.

PER CURIAM:

      Alvin Toles appeals his 24-month imprisonment sentence for revocation of

his supervised release. We affirm.
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                                I. BACKGROUND

      In September 2004, Toles was convicted of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 71

months of imprisonment and 3 years of supervised release. Toles began serving

his term of supervised release on January 15, 2010. On October 26, 2010, the

district judge revoked Toles’s term of supervised release, because he had been

arrested for possessing a firearm. The judge sentenced Toles to 24 months of

imprisonment, with no supervised release to follow.

      On October 19, 2010, Toles was charged with being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1). He pled guilty to the charge, and

on April 1, 2011, the district judge sentenced Toles to 27 months of imprisonment

and 3 years of supervised release, to run concurrently with the 24-month

imprisonment sentence imposed on October 26, 2010. Toles began serving his

second term of supervised release on March 8, 2013.

      On November 21, 2013, the district judge revoked Toles’s second term of

supervised release, because Toles failed to comply with numerous terms of his

supervision. The judge sentenced Toles to an imprisonment sentence of

time-served, plus a 24-month term of supervised release, which was to begin upon

Toles’s release to Herring House, a residential substance-abuse-rehabilitation

facility in Dothan, Alabama. A mandatory term of supervised release required


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Toles to attend and to comply with all obligations of Herring House for one year or

until he was discharged successfully from the program.

      Toles began his third term of supervised release on December 10, 2013,

when he was released to Herring House. On January 6, 2014, Toles was

discharged from Herring House for disruptive behavior and noncompliance with

program rules and objectives. The same day, the government filed a petition to

revoke Toles’s third term of supervised release, based upon his discharge from

Herring House.

      At the revocation hearing, Toles admitted to violating a mandatory term of

supervision; the district judge revoked Toles’s term of supervised release. Before

imposing Tole’s sentence, the judge recognized the applicable Sentencing

Guidelines range was 7 to 13 months of imprisonment, and the statutory maximum

term was 24 months of imprisonment. Rather than imprisonment, Toles requested

that he be sent to a facility that could provide both substance-abuse and mental-

health treatment.

      The judge denied the request, sentenced Toles to the statutory-maximum

sentence, and noted Toles had 22 prior convictions or adjudications, and this was

the third time the judge had revoked Toles’s supervision. The judge explained a

sentence above the Guidelines range was warranted, because Toles previously had

received the benefit of lesser sentences but had not changed his behavior.


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       On appeal, Toles argues his 24-month imprisonment sentence is both plainly

erroneous and unreasonable, because it is greater than necessary to comply with

the purposes of sentencing under 18 U.S.C. § 3553. He also contends his sentence

creates an unwarranted sentencing disparity among supervised-release-revocation

cases, and he cites two unpublished decisions, United States v. DeArmas, 556 F.

App’x 854 (11th Cir. 2014) (per curiam), and United States v. Gray, 290 F. App’x

283 (11th Cir. 2008) (per curiam), to support this assertion.

                                       II. DISCUSSION

       We review the sentence imposed upon the revocation of supervised release

for reasonableness. United States v. Velasquez Velasquez, 

, 1252

(11th Cir. 2008) (per curiam). 1 A district judge must impose a sentence that is both

procedurally and substantively reasonable. Gall v. United States, 

, 51,

, 597 (2007). Toles argues only that his sentence is substantively

unreasonable. We review the reasonableness of a sentence “under a deferential

abuse-of-discretion standard.” 

128 S. Ct. at 591. The party who

challenges the sentence bears the burden of establishing the sentence is

unreasonable. United States v. Dean, 

, 1203-04, 1209 (11th Cir.

2011).


       1
          Toles did not object to the reasonableness of his sentence in district court and concedes
in his initial brief that plain-error review may apply. We need not decide if plain-error review
applies, because we conclude there was no error, plain or otherwise.
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          A sentence is substantively unreasonable if it “fails to achieve the purposes

of sentencing stated in 18 U.S.C. § 3553(a).” 

When revoking a

defendant’s term of supervised release and sentencing the defendant, the judge

must consider (1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need for deterrence; (3) the need to protect

the public; (4) the kinds of sentences and the Guidelines range; (5) any pertinent

policy statements; and (6) the need to provide restitution to any victims. See 18

U.S.C. §§ 3583(e) & 3553(a)(1), (a)(2)(B)-(C), (a)(4), (a)(5), (a)(7).

          A sentencing judge also must consider “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). “A well-founded claim of

disparity, however, assumes that apples are being compared to apples.” United

States v. Docampo, 

, 1101 (11th Cir. 2009) (citation and internal

quotation marks omitted) (noting codefendants were not similarly situated, when

one defendant cooperated with the government and entered a plea agreement, and

the other defendant provided no assistance to the government and proceeded to

trial).

          In addition, a sentence is substantively unreasonable if the judge balances

the § 3553(a) factors unreasonably or places unreasonable weight on a single

factor. United States v. Irey, 

, 1192-93 (11th Cir. 2010) (en banc).


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Toles has failed to meet his burden of proving his sentence is substantively

unreasonable. 

, 1209. In imposing the sentence, the

district judge considered the relevant § 3553(a) factors. See 18 U.S.C. §§ 3583(e)

& 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7). The judge noted Toles’s 22 prior

convictions or adjudications and Toles’s problems following rules. The judge also

stated he had given Toles more chances than any other defendant he had seen in

the last 12 years. This was the third time the judge had revoked Toles’s term of

supervised release. The judge explained he was imposing a sentence above the

Guidelines range because of Toles’s repeated failure to benefit from lesser

sentences and treatment programs. Although Toles compares his 24-month

sentence to the sentences imposed in Gray and DeArmas, he has not demonstrated

that he is similarly situated to the defendants in those cases. In fact, he admits

those defendants had committed different types of violations and had not “been

found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Accordingly, the district

judge’s decision to impose the statutory maximum of 24 months of imprisonment

was substantively reasonable.

      AFFIRMED.




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