[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              AUGUST 15, 2007
                              No. 07-10472                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                       D. C. Docket No. 94-00124-CR-4

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

DARON ANTON SMITH, a.k.a. Twin,


                                                          Defendant-Appellant.


                        ________________________

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

                              (August 15, 2007)

Before BIRCH, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

     Daron Anton Smith appeals his 24-month sentence, which the district court
imposed in connection with the revocation of his supervised release. On appeal,

Smith argues that his sentence is not reasonable because it is greater than necessary

and it subverts the goals of the Sentencing Reform Act. Specifically, Smith argues

that the court made its sentencing decision without adequately weighing the §

3553(a) mitigating factors, and that, consequently, his resulting 24-month sentence

is unreasonable. Smith also contends that the court erred in making an upward

departure in sentencing him. Upon review, we AFFIRM.

                                     I. FACTS

      In 1994, Smith pled guilty to one count of possession of cocaine with the

intent to distribute, in violation of 18 U.S.C. § 846, and one count of possession of

a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1).

The district court engaged in a downward departure and sentenced Smith to 87

months of prison for the drug possession count and 60 months of prison for the

firearm count, with the sentences to run consecutively. The district court also

subjected Smith to a supervised release period of five years. Under the terms of his

supervised release, Smith was prohibited from the excessive use of alcohol and the

use of any controlled substance.

      Smith served his sentence, was released from prison, and commenced his

period of supervised release, in 2005. In October 2005, Smith’s probation officer



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submitted a request for a modification of the terms of his supervised release, so as

to require Smith’s participation in a treatment program for drug and alcohol abuse.

In November 2005, Smith’s probation officer again requested a modification of the

terms of supervised release, this time because Smith had refused to cooperate with

the court-mandated substance abuse program. In July 2006, the probation officer

filed a third request for modification of the terms of Smith’s supervised release,

because Smith had been cited for driving with a suspended license.

      In October 2006, Smith’s urine sample tested positive for marijuana use. He

later signed a written admission that he had used marijuana on 11 October 2006.

In December 2006, Smith’s probation officer submitted a fourth filing to the

district court, stating that Smith had admitted the use of marijuana and requesting a

revocation of Smith’s supervised release.

      At the preliminary revocation hearing, the probation officer informed the

district court that Smith had attempted to flee when the United States marshals

tried to arrest him on 21 December 2006. The arresting officer testified that he had

sought to arrest Smith, but that Smith had “floored it” and tried to leave the

parking lot. R3-54 at 5. The officers had attempted to block Smith’s vehicle in

with their vehicles, but Smith had put his car into reverse and “backed into” one of

the vehicles. 

The officer testified that Smith had then forcefully resisted



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the officers as they tried to detain him, and that they had been forced to use a taser

on Smith in an effort to subdue him. The magistrate judge found probable cause as

to the supervised release violation, and ordered Smith detained until his full

hearing.

      The district court held a revocation hearing in January 2007. The court

commenced the hearing by stating its view that Smith was a “hopeless case” and

that his record was “miserable.” R4-55 at 5. The court then asked Smith’s counsel

for some further explanation as to the events that had transpired in connection with

the December 2006 arrest.

      Smith’s counsel acknowledged his client’s marijuana use. However, his

counsel requested that the district court take into consideration that Smith’s father

had recently passed away. He indicated that the circumstances surrounding his

arrest, including his attempt to flee by colliding with a U.S. Marshall’s car, were

manifestations of his excessive grief at the death of his father. Smith’s counsel

also pointed out that Smith had four children, and that he was meeting his child

support obligations. He also stated that Smith had been working steadily since his

release.

      Smith personally addressed the court to offer his explanation regarding his

conduct at the December arrest. Smith stated that his collision with the officer’s



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car while attempting to flee “wasn’t really a major collision. I just like tapped the

bumper of the car, sir.” 

Smith stated that he had been trying to pick up

his paycheck, so he could help pay for the funeral of his father, who had passed

away that week. Smith reiterated that he had been steadily employed, had been

paying child support, and had made an effort to rejoin society, even if it was not

always a perfect effort.

      Smith’s probation officer then testified that he had done everything possible

to try and get Smith to comply with the terms of his supervised release, from

community service to substance abuse treatment, but that nothing had seemed to

work. The probation officer challenged Smith’s contention that his attempt to flee

the officers during his December arrest was an unusual, one-time occurrence;

rather, the officer reminded the court that Smith had similarly attempted to flee law

enforcement, by jumping out of a window, during his initial arrest in 1994. The

officer also stated that in fleeing from the officers in his vehicle in December 2006,

Smith had placed the public in danger.

      The district court observed that this was Smith’s fourth violation of

supervised release, and its previous attempts at getting Smith to comply with his

supervised release had failed. The court stated that Smith may not be a “hopeless”

case, as he was a “reasonably intelligent man who can hold a job,” but that his



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positive endeavors had been outweighed by his probation violations and his

attempt to evade arrest, which unnecessarily jeopardized the lives of others. 

The court stated that Smith was apparently incapable of “accept[ing]

responsibility.” 

The court then stated that the “only result that [the court

could] see” was to revoke Smith’s supervised release and sentence him to 24

months’ imprisonment. 

acknowledged that a 24-month sentence was an upward departure,

but that it was based upon Smith’s actions during the arrest and the downward

departure he had received at his original sentencing. In doing so, the court stated

that it had “considered the policies and the Sentencing Commission requirements

of Chapter 7 and the policy statements relating to the sentences.” 

followed.

                                  II. DISCUSSION

      Smith makes two arguments on appeal. First, he contends that his sentence

is unreasonable because the district court failed to adequately consider the §

3553(a) factors. Specifically, Smith claims that the court’s statement at the

probation revocation hearing that his case was “hopeless,” R4-55 at 5, suggests that

the court had made its sentencing decision prior to considering the § 3553(a)

mitigating factors that were raised at the hearing–namely, the fact that his conduct



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was partially attributable to his emotional distress following the death of his father;

the fact that he was paying his child support obligations and working regularly; and

the fact that he was making a sincere effort to rejoin society. Smith contends that

the court’s failure to adequately consider these § 3553(a) factors demonstrates that

his sentence is unreasonable. As a second argument, Smith claims that the court

abused its discretion by upwardly departure in sentencing him. We address each

contention in turn.

       Sentences imposed for violation of supervised release under an advisory

guidelines system are reviewed for reasonableness. United States v. Sweeting, 

, 1106-07 (11th Cir. 2006) (per curiam). “Under 18 U.S.C. § 3583(e), a

district court may, upon finding by a preponderance of the evidence that a

defendant has violated a condition of supervised release, revoke the term of

supervised release and impose a term of imprisonment after considering certain

factors set forth in 18 U.S.C. § 3553(a).” 

. Those

factors include: (1) the nature and circumstances of the offense; (2) the history and

characteristics of the defendant; (3) the need for the sentence imposed to provide

adequate deterrence, protect the public, and provide the defendant with needed

medical care or correctional treatment; (4) the pertinent Sentencing Commission

policy statements; and (5) the need to avoid unwarranted sentencing disparities.



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See 18 U.S.C. § 3553(a).

      The court need not, however, explicitly consider every single § 3553(a)

factor in order for the sentence to be reasonable. See United States v. Scott, 

, 1329 (11th Cir. 2005). Rather, “an acknowledgment by the court that it

has considered the defendant’s arguments and the factors in section 3553(a)” will

suffice. United States v. Talley, 

, 786 (11th Cir. 2005) (per curiam).

In determining if the court has adequately considered the defendant’s arguments

and the § 3553(a) factors, we can look to the district court’s statements over the

entire sentencing hearing. See United States v. Williams, 

, 1355

(11th Cir. 2006) (per curiam).

      In this case, the district court’s sentence did reflect consideration of several

of § 3553(a)’s relevant factors. The court considered Smith’s inability to comply

with the terms of his supervised release despite numerous attempts by the court and

his probation officer to keep him in compliance. The court also noted that during

Smith’s most recent arrest, he had attempted to flee from police, thereby

endangering the lives of numerous persons. The court sentenced Smith to 24

months of imprisonment after stating that it had explicitly considered the policy

statements of Chapter 7. See R4-55 at 19 (“I have considered the policies and the

Sentencing Commission requirements of Chapter 7 and the policy statements



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relating to sentences.”). Because the court considered Smith’s particular history

and characteristics, the nature of the offense, the goal of protecting the public, and

the Chapter 7 policy statements, we conclude that the sentence was reasonable.

      Smith next argues that the district court’s upward departure from the

guidelines was excessive. We review a district court’s decision to exceed the

advisory sentencing range in Chapter 7 of the Sentencing Guidelines for an abuse

of discretion. United States v. Silva, 

, 798 (11th Cir. 2006) (per

curiam).

      Chapter 7 of the Sentencing Guidelines governs violations of supervised

release, and it contains policy statements regarding such violations. See U.S.S.G.

ch.7, pt. A(3)(a). We have indicated that the policy statements of Chapter 7 are

advisory and not binding. 

. However, the district court must

consider them in imposing a sentence. United States v. Brown, 

,

1242 (11th Cir. 2000). Chapter 7 provides for a list of recommended ranges of

imprisonment that are applicable upon revocation of supervised release. See

U.S.S.G. § 7B1.4, p.s. Where the original sentence was the result of a downward

departure, an upward departure may be warranted. 

n.4. If the

sentence imposed in revocation of supervised release is an upward departure in

excess of the range, it is enough that the district court give some indication that it is



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aware of and considered the Chapter 7 policy statements. United States v.

Aguillard, 

, 1320 (11th Cir. 2000) (per curiam).

      Here, the district court stated that it was departing upwardly from the

guidelines range after having considered the Chapter 7 policy statements.

Moreover, the court explicitly stated that one of its reasons for sentencing above

the recommended range was that Smith had received a downward departure at his

original sentencing hearing in 1995. The court indicated that an upward departure

was appropriate based on Smith’s conduct during his arrest–in which he collided

with an officer’s car while attempting to flee arrest and forcefully resisted being

detained. Because the policy statements of Chapter 7 are advisory, and because it

is clear from the record that the court was aware of and considered them in

sentencing Smith, the district court did not abuse its discretion in imposing a

sentence that exceeded the Guidelines range. See 

      Smith has appealed his 24-month sentence, which the district court imposed

in connection with the revocation of his supervised release. Having reviewed the

record, we conclude that the sentence imposed was reasonable, and that the court

did not abuse its discretion in upwardly departing from the recommended range.

Accordingly, we AFFIRM.



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