[DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                       FILED
                          ________________________           U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                   October 11, 2006
                                 No. 06-12392                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                        D. C. Docket No. 05-00188-CR-CG

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

MACK RAY HERRIN, JR.,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Southern District of Alabama
                         _________________________

                                (October 11, 2006)

Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Mack Ray Herrin, Jr. appeals the 24-month sentence he received after

violating the conditions of his supervised release. He contends on appeal that the
district court abused its discretion by sentencing him to the statutory maximum,

and that his sentence is unreasonable. We affirm.

       Herrin was originally sentenced to 37 months of imprisonment and 3 years

of supervised release after pleading guilty to bank robbery in the United States

District Court for the Southern District of California. Among the conditions of his

supervised release were that he not commit another crime and refrain from

excessive use of alcohol. While out on supervised release and living in Alabama,

Herrin violated these release conditions when he was arrested for driving while

under the influence of alcohol. His supervised release was continued, although

with several modifications – again, he was prohibited from using alcohol and

controlled substances and required to participate in a drug abuse treatment

program. He was also warned by the district court that if he violated even one

condition of supervised release again, he would receive the maximum penalty that

the law allows. After subsequently testing positive for the use of cocaine, Herrin’s

supervised release was again revoked. This time, the district court sentenced

Herrin to 24 months of imprisonment, which exceeded the advisory sentencing

range under United States Sentencing Guidelines § 7B1.4.1


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        Based on Grade C violations of his supervised release and a criminal history category of
IV, Herrin’s advisory Chapter 7 guidelines range was 6 to 12 months. U.S.S.G. § 7B1.4(a). The
maximum statutory term of imprisonment for revocation of supervised release, where the offense
for which supervised release was imposed was a Class C felony, was 24 months. 18 U.S.C. §

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       Herrin appeals his sentence on the grounds that the sentence was an abuse of

discretion and unreasonable given the sentencing factors set forth in 18 U.S.C.

§ 3553(a). Specifically, Herrin argues that the court did not adequately consider

the guideline range and the sentencing factors. He contends that the court’s reason

for imposing the sentence, that it had promised at Herrin’s first revocation hearing

to impose a maximum sentence if he violated any of the conditions of his

supervised release again, does not accomplish the sentencing goals set forth in 18

U.S.C. § 3553(a).

       We review the district court’s decision to exceed the advisory sentencing

guideline range for an abuse of discretion. United States v. Silva, 

,

798 (11th Cir. 2006). Following United States v. Booker, 

, 

, 

(2005), we now review a sentence imposed upon

revocation of supervised release for reasonableness, which is essentially the same

as the “plainly unreasonable” standard. United States v. Sweeting, 

,

1106-07 (11th Cir. 2006). Under this deferential standard, we consider “the final

sentence, in its entirety, in light of the § 3553(a) factors.” United States v. Martin,

, 1237 (11th Cir. 2006). The challenging party has the “burden of

establishing that the sentence is unreasonable.” 

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

may revoke 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).

When a district court imposes a sentence outside the guideline range, it must state

its reasons in open court. 18 U.S.C. § 3553(c)(2). One factor the district court

must consider under § 3553(a) is the policy statements of Chapter 7, which contain

recommended ranges of imprisonment for violations of supervised release. 18

U.S.C. § 3553(a)(4)(B); U.S.S.G. § 7B1.4. Nevertheless, we have consistently

held that these policy statements are merely advisory and not binding. 

. To exceed the recommended range, the court must indicate it

considered the policy statements. 

court is not required to state on

the record that it has considered each § 3553 (a) factor, or to discuss each factor.

United States v. Scott, 

, 1329 (11th Cir. 2005).

      The district court did not abuse its discretion by sentencing Herrin to the

statutory maximum. The court considered the Chapter 7 recommended guidelines.

Herrin’s counsel told the court the applicable guideline range and the court stated

that it found them inappropriate. The district court also stated its reasons for

sentencing outside the guideline range, explaining that it had previously given

Herrin “the benefit of the doubt,” and he failed to comply with court ordered



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conditions of release despite warning that he would be sentenced to the statutory

maximum. Because the guidelines are advisory and the court stated its reasons for

departure as required by § 3553(c)(2), we can find no abuse of discretion in

sentencing Herrin to statutory maximum.

      We also find that Herrin’s overall sentence was not unreasonable. The

district court, by acknowledging the advisory guidelines range, demonstrated that it

had considered the Chapter 7 policy statements. The court’s other statements

demonstrate that it took into account the § 3553(a) factors as required. When the

court noted Herrin’s previous violation of release conditions by stating that the

court had given him “the benefit of the doubt,” the court showed consideration of

(1) the nature and circumstances of the violation, (2) Herrin’s history and

characteristics, and (3) the need to protect the public from future crimes. The

district court’s statements that she would “not go back on [her] word,” and that she

intended to sentence Herrin “as [she] promised” demonstrate a consideration of (1)

the need to afford adequate deterrence, (2) the need for just punishment, and (3) the

need to promote respect for the law. The court did not need to make explicit

consideration of all the § 3553(a) factors. 

. The district

court’s statements indicate that she gave weight to these factors prior to sentencing.

Nothing in the record convinces us the sentence was unreasonable.



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      Upon review of the record and consideration of the parties’ briefs, we find

the district court neither abused its discretion nor imposed an unreasonable

sentence. The sentence is,

      AFFIRMED.




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