Case: 12-10623         Date Filed: 10/31/2012   Page: 1 of 4

                                                                       [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10623
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 1:99-cr-00072-WBH-JFK-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                               versus

JAMES CALVIN BROOKS,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (October 31, 2012)

Before TJOFLAT, CARNES, and KRAVITCH, Circuit Judges.

PER CURIAM:
               Case: 12-10623     Date Filed: 10/31/2012    Page: 2 of 4

      James Brooks appeals his sentence of 8 months imprisonment, followed by

28 months supervised release, imposed under 18 U.S.C. § 3583, after the

revocation of his original term of supervised release. Brooks contends for the first

time on appeal that he is entitled to credit for the 7 months he served on his

original term of supervised release before the revocation. He concedes that the

language in § 3583(e)(3) does not authorize such credit. He argues, however, that

this language applies only to revocations based on new felonies and not to the

misdemeanor or other “technical” violations that led to his revocation. He also

contends that his sentence is substantively unreasonable.

      We review only for plain error sentencing issues raised for the first time on

appeal. United States v. Doe, 

, 567 (11th Cir. 2011). “Before an

error is subject to correction under the plain error rule, it must be plain under

controlling precedent or in view of the unequivocally clear words of a statute or

rule; it must have adversely affected the outcome of the proceedings; and it must

be such that the failure to correct it would seriously affect the fairness, integrity or

public reputation of judicial proceedings.” United States v. Lett, 

,

790 (11th Cir. 2007).

      Section 3583(e)(3) provides that “the court may revoke a term of supervised

release . . . without credit for time previously served on postrelease supervision . . .

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.” 18 U.S.C. § 3583(e)(3) (emphasis added). We have held that the plain language

of that provision and the intent of Congress dictate that a defendant is not entitled

to credit for pre-revocation time served on supervised release. United States v.

Gresham, 

, 1268 (11th Cir. 2003). That holding applies regardless

of the type of violation of supervised release conditions that leads to the

revocation. The district court did not commit any error, plain or otherwise, by not

crediting Brooks with the 7 months of supervised release that he had already

served before the revocation.

       Brooks next contends that his sentence is substantively unreasonable. He

argues that the additional 7-month term of supervised release is unnecessary

because a halfway house is sufficient to satisfy the 18 U.S.C. § 3553(a) factors.

We review for abuse of discretion the reasonableness of a sentence imposed after

revocation of supervised release. United States v. Cunningham, 

,

1266 (11th Cir. 2010). The party challenging the sentence bears the burden of

establishing that it is unreasonable in light of the record and the § 3553(a) factors.1

United States v. Talley, 

, 788 (11th Cir. 2005). We will vacate the

sentence only if left with the definite and firm conviction that the district court


       1
        The district court must consider the sentencing factors set forth in 18 U.S.C. §
3553(a)(1), (a)(2)(B)–(D), and (a)(4)–(7) when sentencing a defendant upon revocation of
supervised release. 18 U.S.C. § 3583(e).

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committed a clear error of judgment in weighing the § 3553(a) factors by imposing

a sentence that lies outside the range of reasonable sentences dictated by the facts

of the case. United States v. Irey, 

, 1190 (11th Cir. 2010) (en banc).

Although we do not automatically presume that a sentence within the guidelines

range is reasonable, we ordinarily expect it to be. United States v. Hunt, 

, 746 (11th Cir. 2008).

      The district court sentenced Brooks to 8 months imprisonment, which is at

the low end of his 8 to 14-month guidelines range, with 28 months supervised

release to follow. That sentence is substantively reasonable in light of the record

and the § 3553(a) factors. Brooks concedes that he violated conditions of his

supervised release by consuming alcohol and drugs and failing to undergo

required mental health and substance abuse counseling. The district court noted

that it is in the public’s interest for Brooks to continue on supervised release after

his imprisonment term and in Brooks’ best interest to serve a period of halfway

house confinement as a condition of that release. The district court did not abuse

its discretion in fashioning Brooks’ sentence.

      AFFIRMED.




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