Case: 12-20203 Document: 00512315841 Page: 1 Date Filed: 07/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 22, 2013
No. 12-20203 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee
v.
DESRICK VAUGHN-MICHAEL WARREN,
Defendant–Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before STEWART, Chief Judge, and BARKSDALE and HIGGINSON, Circuit
Judges.
HIGGINSON, Circuit Judge:
Defendant–Appellant, Desrick Vaughn-Michael Warren, appeals the
district court’s twenty-four-month sentence for violating two conditions of
supervised release. Finding no procedural or substantive error in Warren’s
supervised release revocation sentence, we AFFIRM.
FACTS AND PROCEEDINGS
Warren pleaded guilty to one count of possession with intent to distribute
phencyclidine (“PCP”) in violation of 21 U.S.C. § 841(a)(1). He received a
sentence of 110 months of imprisonment, within the guidelines range, followed
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by a three-year term of supervised release. After serving his prison sentence,
Warren commenced supervised release in July 2011. In February 2012, the U.S.
Probation Office filed a petition to revoke Warren’s supervised release, alleging
that Warren had: (1) tested positive for marijuana in February 2012 and
subsequently denied using the drug in writing; and (2) failed to participate in
drug treatment counseling sessions in October and November 2011. The petition
to revoke noted also that in October 2011, the district court previously had taken
“no action after Mr. Warren was arrested for possession of marijuana and
fail[ed] to report his arrest within 72 hours.”
Prior to Warren’s revocation hearing, the Probation Office prepared a
Sentencing Options Worksheet (“SOW”). The Probation Office determined that
Warren’s two supervised release violations were Grade C, and that Warren’s
criminal history category was VI. See U.S. SENTENCING GUIDELINES MANUAL §§
7B1.1(a), 7B1.4(a) (hereinafter “U.S.S.G.”). It accordingly found that Warren’s
statutory maximum sentence was twenty-four months of imprisonment and
calculated that Warren’s advisory guidelines range was between eight and
fourteen months of imprisonment. See 18 U.S.C. § 3583(e)(3); U.S.S.G. §
7B1.4(a).
At the revocation hearing, the government recommended the district court
revoke supervised release, explaining that to continue Warren’s supervised
release would be an ineffective use of limited resources. Warren pleaded true to
the allegations in the petition to revoke. The court then raised the concern that
eleven of nineteen of Warren’s urine samples had returned with an invalid
result, a separate issue from the positive test forming the basis for count one of
the petition to revoke:
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The Court: [Warren’s] not having a hard time. He’s not. He’s doing
exactly what he wants to do. A hard time would be straightening
up, flying right, get a job, get up early, work hard, save money, mow
your old neighbor’s yard. That might be hard. Laying around,
buying drug user [sic] is not hard. So the probation—the halfway
house doctor took urine samples; is that right?
[Warren]: No, sir.
The Court: That’s what you told the probation officer.
[Defense Counsel]: I’m sorry, Your Honor. What are we talking
about?
The Court: Well, the probation officer says that . . . his sample [was]
not quite right because the halfway house’s doctor, the problem was
the probation officer took the sample. But out of 19 samples, 11 of
them were irregular?
[Defense Counsel]: Your Honor, I don’t believe that’s one of the
allegations. I mean, if we’re going to go forward on that, then I
would ask for more time to get prepared for that.
The Court: To get prepared to do what?
[Defense Counsel]: I’m just saying I don’t think that that was one of
the allegations[.]
The Court: It’s not one of the counts, counsel, but it’s part of his
behavior while on probation.
[Defense Counsel]: I understand, Your Honor.
The Court: That’s the problem. He’s belligerent, he’s uncooperative,
and I don’t know exactly how it works, but apparently he’s using
something that distorts the quality of his urine before the urine test.
I don’t know anything about that, but he’s gaming the system
because he doesn’t want to do what he’s supposed to do.
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Under questioning from the court, Warren admitted that he had
successfully abstained from drugs while in prison but that he returned to using
them on supervised release. The court admonished Warren that he was to blame
for his relapse: “You didn’t have an addiction. You had a choice. Temptation is
a choice.” The court added that “[w]e spent a fortune trying to help you
straighten out.” Warren’s counsel responded that he understood the court’s
position and agreed that Warren “had opportunities to straighten up, and that
he is [sic] not availed himself of those opportunities.” He asked the court to
consider giving Warren a second chance on supervised release with inpatient
treatment, with the understanding that the court could impose the maximum
sentence for any subsequent violation. In a frank and affirmative dialogue,
counsel explained to the court:
I think that you’re getting the point across to him in maybe a way
that has not been done before . . . . That’s initially what probation
wanted to do with him, was to put him in inpatient treatment
because they recognize that he does have a drug problem. He was
not willing to admit it at that time. He came in here today prepared
to admit after a heart-to-heart, and I think the Court has gotten
that message across even stronger.
The court responded, however, that Warren had already been unsuccessful in
substance-abuse treatment on supervised release. After hearing directly from
Warren, the court asked:
The Court: When did the probation office first receive the urine
sample with traces of drugs from you?
....
[Warren]: It says local results and it says NLT results.
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Probation Officer: First confirmed uranalysis [sic] positive was on
February 1st [2012], Your Honor. There were numerous [other]
urinalysis [sic] that were taken that came back with invalid results.
The Court: And you get invalid results either because you’re
physically ill or you’ve done something to help invalidate them.
Warren’s counsel later reiterated the request for continued release paired with
inpatient treatment, and, in the alternative, a revocation sentence of six months
with no additional supervised release.
The district court sentenced Warren to the statutory maximum term of
twenty-four months in prison with no additional term of supervised release.
Warren’s counsel responded that “[t]o the extent that the sentence is outside the
guidelines range, we will object, and also to the extent that the Court did
consider some information that we had not given notice of, specifically—,” before
the court interjected. The court stated: “You have no evidence that he was
cooperative, that he did not turn in 11 inconclusive out of 19. It doesn’t matter
what the numbers are. Six months he was out before he started
missing—getting caught misbehaving.” Warren timely appealed. See FED. R.
APP. P. 4(b).
STANDARD OF REVIEW
When the defendant properly preserves his objection for appeal, see FED.
R. CRIM. P. 51(b), we review a sentence imposed on revocation of supervised
release under a “plainly unreasonable” standard, in a two-step process. United
States v. Miller, 634 F.3d 841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011).
First, we “ensure that the district court committed no significant procedural
error, such as failing to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence,
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including failing to explain a deviation from the Guidelines range.” United
States v. Kippers, 685 F.3d 491, 497 (5th Cir. 2012) (internal quotation marks
omitted). “If the district court’s sentencing decision lacks procedural error, this
court next considers the substantive reasonableness of the sentence imposed.”
Id. If we find the sentence unreasonable, we may reverse the district court only
if we further determine “the error was obvious under existing law.” Miller, 634
F.3d at 843.
When the defendant fails to bring a sufficient objection to the attention of
the district court, we may correct an unpreserved “plain error that affects
substantial rights.” FED. R. CRIM. P. 52(b); Henderson v. United States, 133 S.
Ct. 1121, 1124 (2013). However, under plain error review, the defendant bears
the burden to show “(1) error (2) that is plain and (3) that affects his substantial
rights.” United States v. Broussard, 669 F.3d 537, 553 (5th Cir. 2012) (internal
quotation marks omitted). “To be ‘plain,’ legal error must be clear or obvious,
rather than subject to reasonable dispute.” Id. (internal quotation marks
omitted). We assess the error’s plainness based on the law “applying at the time
of review.” Henderson, 133 S. Ct. at 1127. “To affect the defendant’s substantial
rights, the defendant must demonstrate that the error affected the outcome of
the district court proceedings.” Broussard, 669 F.3d at 553. Even if the
defendant succeeds in making that showing, we exercise our discretion to correct
the error only “if it seriously affected the fairness, integrity, or public reputation
of the judicial proceeding.” Id. (internal quotation marks omitted).
DISCUSSION
Warren urges us to vacate his sentence and remand for resentencing on
the basis that the district court procedurally erred, in failing to provide advance
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notice that it would invoke the eleven invalid urine samples at sentencing, and
substantively erred, in relying on improper considerations in assessing its
twenty-four month sentence.
I. Procedural Unreasonableness
Warren argues that his sentence is procedurally unreasonable because the
district court considered the invalid urine samples at revocation sentencing
without forewarning. Warren argues that the failure to provide him notice
violated both Federal Rule of Criminal Procedure 32.1 and the Fifth
Amendment’s Due Process Clause.
A. Preservation of Error for Appeal
Preliminarily, the government suggests our procedural unreasonableness
review should be for plain error only. To preserve an error for appeal, Federal
Rule of Criminal Procedure 51(b) requires that the appellant, if given the
opportunity to object in district court, have made “an objection . . . sufficiently
specific to alert the district court to the nature of the alleged error and to provide
an opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir.
2009); see FED. R. CRIM. P. 51(b). Warren’s counsel twice emphasized the
concern that the district court was relying on the invalid urine samples without
pre-hearing notice, both before and after the court pronounced sentence. That
measure of objection sufficed to alert the court to Warren’s alleged legal error,
and the court proceeded, in both instances, to provide brief reasoning rejecting
the argument. We apply the normal, “plainly unreasonable” standard of review
discussed infra. See Miller, 634 F.3d at 843.
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B. Lack of Pre-Sentencing Notice of Invalid Urine Samples
The parties point to no authority, nor have we discovered any, that
resolves whether pre-hearing notice is required for all facts on which the district
court may rely at revocation sentencing. See United States v. Hall, 383 F. App’x
412, 414 (5th Cir. 2010) (unpublished) (observing that “it is not clear that the
district court would have erred by relying on uncharged conduct in deciding how
to sentence Hall for violating the terms of his supervised release”) (emphasis in
original).
Federal Rule of Criminal Procedure 32.1 governs supervised release and
probation revocation proceedings. Rule 32.1 delineates, at times extensively,
procedural requirements at each stage in the revocation process. See FED. R.
CRIM. P. 32.1(a) (applying to initial appearances); id. 32.1(b)(1) (applying to
preliminary hearings); id. 32.1(b)(2) (applying to final revocation hearings); id.
32.1(c) (applying to modifications of the terms of probation or supervised
release); id. 32.1(d) (applying to “Disposition of the Case”). Under Rule
32.1(b)(2)(B), the defendant is entitled to “disclosure of the evidence against the
person” prior to the court’s determination that the defendant violated a condition
of supervised release. FED. R. CRIM. P. 32.1(b)(2)(B); see Hall, 383 F. App’x at
414. Rule 32.1 makes no clear provision for notice of information, however,
relevant to revocation sentencing. See FED. R. CRIM. P. 32.1(b)(2). In that
regard, Rule 32.1 stands in notable contrast to Rule 32, which requires and
elaborates extensive, pre-hearing notice mechanisms for information at original
sentencing. Compare id. 32.1, with id. 32.1
1
Rule 32 requires the Probation Office generally to prepare a presentence report
(“PSR”) that, among other things, “identif[ies] any factor relevant to” the appropriate
guidelines range sentence or a departure from the guidelines range. FED. R. CRIM. P.
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Rule 32.1(d), concerning “Disposition of the Case,” is the only portion of
Rule 32.1 that relates specifically to revocation sentencing, referencing 18 U.S.C.
§ 3583’s rules for supervised-release sentencing. See FED. R. CRIM. P. 32.1(d)
(“The court’s disposition of the case is governed by 18 U.S.C. § 3563 and § 3565
(probation) and § 3583 (supervised release).”); 18 U.S.C. § 3583. Section 3583(e),
which covers discretionary modifications or revocations of supervised release,
permits courts to revoke supervised release and sentence defendants to a
sentence within the applicable statutory maximum, after considering a specified
collection of the sentencing factors listed in 18 U.S.C. § 3553(a). See 18 U.S.C.
§ 3583(e)(3); United States v. Recesky, 699 F.3d 807, 809 (5th Cir. 2012). Section
3583(g), without mention of the § 3553(a) factors, mandates the court impose a
term of imprisonment upon revocation when the defendant violates conditions
of supervised release in committing certain drug or firearms violations. See 18
U.S.C. § 3583(g); United States v. Mathena, 23 F.3d 87, 91 (5th Cir. 1994). No
provision requires, or addresses, pre-hearing notice of sentencing considerations.
In fact, we have held that no advance notice is required when the district court
sentences a revocation defendant above the recommended range to a statutory-
maximum term. Mathena, 23 F.3d at 93 n.13.
32(d)(1)(D), (E). The Probation Office typically must provide a copy of the PSR to the
defendant, the defense attorney, and the government at least thirty-five days prior to
sentencing. Id. 32(e)(2). The parties may then file any objections to the PSR within fourteen
days of receipt, and the probation officer may meet with the parties to address their objections
and revise the PSR if necessary. Id. 32(f). The rules further direct the judge at sentencing to
“verify that the defendant and the defendant’s attorney have read and discussed the [PSR] and
any addendum to the report.” Id. 32(i)(1)(A). If the court “will rely in sentencing” on certain
categories of confidential information excluded by rule from the PSR, it “must give to the
defendant and an attorney for the government a written summary of—or summarize in
camera—any information excluded . . . and give them a reasonable opportunity to comment
on that information.” Id. 32(i)(1)(B).
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The U.S. Sentencing Commission also has not promulgated a pre-
sentencing notice rule. Congress tasked the Commission with crafting
“guidelines or general policy statements regarding the appropriate use” of
discretionary supervised release revocation proceedings under § 3583(e). 28
U.S.C. § 994(a)(3). The Commission opted to discharge that duty with the
“policy statements,” as opposed to sentencing “guidelines,” found in Chapter
Seven of the U.S. Sentencing Guidelines Manual. U.S.S.G. ch.7, pt. A,
introductory cmt. 1. The policy statements give district courts considerable
discretion. Unlike the guidelines ranges applicable in original sentencing, even
prior to the Supreme Court’s ruling in United States v. Booker, 543 U.S. 220
(2005) (holding that the then-extant regime of mandatory, original sentencing
guidelines violated the Sixth Amendment in permitting sentencing enhancement
based on facts found by a sentencing judge by a preponderance of the evidence,
and remedying the constitutional problem by severing provisions making the
guidelines mandatory), revocation policy statement sentencing ranges were
advisory from their inception. See United States v. Hernandez–Martinez, 485
F.3d 270, 273 (5th Cir. 2007). Moreover, Chapter Seven’s policy statements,
while discussing the purposes of revocation sentencing and providing instruction
on calculating recommended revocation-sentencing ranges, do not address pre-
hearing notice and opportunity to comment on factors relevant to the district
court’s sentencing determination. See U.S.S.G. ch. 7. Instead, they describe that
the present system of supervised release revocation, unlike original sentencing,
rests on a theory of “sanction[ing] primarily the defendant’s breach of trust” and
“taking into account, to a limited degree, the seriousness of the underlying
violation and the criminal history of the violator.” U.S.S.G. ch.7, pt. A,
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introductory cmt. 3(b); see Miller, 634 F.3d at 843 (“[T]he goal of revocation is to
punish a defendant for violating the terms of the supervised release. . . . [T]his
aim differs from the objectives outlined for the imposition of an original
sentence.”); United States v. Crudup, 461 F.3d 433, 437–38 (4th Cir. 2006). In
that vein, “unlike original sentences that have a guidelines range and a separate
statutory maximum, the statutory maximum sentence for supervised release
revocation sentences is directly tied to the original term of supervisory release.”
Crudup, 461 F.3d at 438. Those features, differentiating revocation from
original sentencing, help illustrate “that the Sentencing Commission intended
to give district courts substantial latitude in devising revocation sentences for
defendants who violate the terms of supervised release.” Miller, 634 F.3d at 843
(internal quotation marks omitted); Gagnon v. Scarpelli, 411 U.S. 778, 788–89
(1973) (“[T]here are critical differences between criminal trials and probation or
parole revocation hearings, and both society and the probationer or parolee have
stakes in preserving these differences.”). In light of many of those same
considerations, we apply a more deferential, “plainly unreasonable” standard of
review to revocation sentences than the “reasonableness” review for original
sentences. See Miller, 634 F.3d at 842–43; Hernandez–Martinez, 485 F.3d at
273–74.
The concept of relatively informal revocation sentencing, and the absence
of a codified, pre-sentencing-notice rule, draws from the Supreme Court’s
seminal decisions on the constitutional parameters of revocation proceedings,
Morrissey v. Brewer, 408 U.S. 471 (1972) and Gagnon, 411 U.S. 778, on which
Rule 32.1 is based, see United States v. Tham, 884 F.2d 1262, 1265 (9th Cir.
1989). In Morrissey, a parole revocation case, the Court held that a defendant
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facing revocation is not owed “the full panoply of rights due a defendant in” a
criminal prosecution. Morrissey, 408 U.S. at 480; see United States v.
Grandlund, 71 F.3d 507, 510 n.5 (5th Cir. 1995) (“[T]he same due process rights
granted to those facing revocation of parole are required for those facing
revocation of supervised release.”). As the Court reasoned, “[r]evocation deprives
an individual, not of the absolute liberty to which every citizen is entitled, but
only of the conditional liberty properly dependent on observance of special parole
restrictions.” Morrissey, 408 U.S. at 480.
The Court confirmed, however, that “some orderly process” governs
revocation, given the valuable liberty interest still at stake. Id. at 482. In
elucidating the protections that apply, the Court centered on the “two important
stages” in the revocation process—the initial hearing to determine cause to
detain the defendant and the final revocation hearing to determine whether the
facts warrant revocation. Morrissey, 408 U.S. at 485–88; Gagnon, 411 U.S. at
781–82 (applying the rule announced in Morrissey to probation revocation). In
contrast, the Court provided comparatively little discussion of revocation
sentencing and enumerated no additional, constitutionally-mandated procedure.
Rather, the Court referenced how revocation sentencing is “more complex,” and
that, unlike determining whether a violation permitting revocation occurred,
“deciding what to do about the violation once it is identified, is not purely factual
but also predictive and discretionary.” Morrissey, 408 U.S. at 480. “The factors
entering into these decisions relate in major part to a professional evaluation,
by trained probation or parole officers, as to the overall social readjustment of
the offender in the community, and include consideration of” a number of
variables as well as “whether there have been specific and significant violations
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of the conditions of the probation or parole.” Gagnon, 411 U.S. at 784 n.8. The
Court described that “[w]hat is needed is an informal hearing structured to
assure that the finding of a parole violation will be based on verified facts and
that the exercise of discretion will be informed by an accurate knowledge of the
parolee’s behavior.” Morrissey, 408 U.S. at 484 (emphases added); see Gagnon,
411 U.S. at 781–82.
Fitting as it does within constitutional bounds, Congress’s judgment of
criminal justice policy is not ours to gainsay. Nor, for that matter, do we expect
the present framework typically to be at odds with the defendant’s interest in an
individualized revocation sentence predicated on careful attention to mitigating
factors. It may often be the defendant who wishes to raise arguments for
revocation leniency for the first time when he addresses the court. Even here,
Warren’s attorney welcomed the district court’s free and candid exchange with
Warren, emphasizing that the court’s frank counsel might spur his client to
reform and avert the need for a harsh sentence. We conclude that there is no
constitutional or statutory basis, and no recommendation by the U.S. Sentencing
Commission, on which to find error when the district court engages in the
“predictive and discretionary” task of revocation sentencing, Morrissey, 408 U.S.
at 480, by referencing without prior notice conduct that, as the district court
here stressed, was “part of [Warren’s] behavior while on” supervised release.
There are, of course, other legal limits on the district court’s sentence
imposition discretion at revocation sentencing. Most relevant, Warren invokes
our settled law that “[s]entences based upon erroneous and material information
or assumptions violate due process.” United States v. Tobias, 662 F.2d 381, 388
(5th Cir. Unit B Nov. 1981) (holding an original sentence invalid under plain
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error review when the district court relied primarily on the large quantity of
chemicals undercover agents supplied to the defendant to manufacture PCP and
there was no evidence the defendant independently requested a specific quantity
of chemicals or intended to manufacture a certain amount of PCP); cf. Townsend
v. Burke, 334 U.S. 736, 740–41 (1948) (determining, on habeas corpus review,
that an original sentence was constitutionally invalid when the defendant was
not represented by counsel at sentencing and the state judge relied on
“materially untrue” assumptions of the defendant’s criminal history in imposing
sentence). That principle extends equally in revocation sentencing as it does in
original sentencing; it is procedural error at revocation sentencing to “select[] a
sentence based on clearly erroneous facts.” Kippers, 685 F.3d at 497; see United
States v. Perez, 460 F. App’x 294, 302 (5th Cir. 2012) (unpublished) (explaining,
after deciding to vacate and remand on other grounds, that the district court
would have procedurally erred if it had imposed a revocation sentence in reliance
on conduct charged in the revocation petition but to which the defendant did not
plead true and concerning which the court declined to hear the government’s
supporting evidence); see also United States v. Lazo–Martinez, 460 F. App’x 879,
883 (11th Cir. 2012) (unpublished) (finding procedural error, applying a
“reasonableness” review, in the district court’s reliance for revocation sentencing
on the government’s unsupported statement that in violating the conditions of
his supervised release by committing grand theft of a boat, the defendant had
returned to the same criminal enterprise, alien smuggling, for which he was
convicted originally); cf. United States v. Berry, 583 F.3d 1032, 1034 (7th Cir.
2009) (upholding the defendant’s revocation sentence against the challenge that
it was based on clearly erroneous factual findings). In raising that due process
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argument, the burden is on the defendant “to demonstrate that the district court
relied on materially untrue information.” United States v. Mueller, 902 F.2d 336,
347 (5th Cir. 1990).
To the extent Warren argues that the district court’s reference and
discussion of the invalid test results were erroneous and material, he does not
make the required showing. Neither at sentencing nor in his appellate briefing
does Warren contest the accuracy of the district court’s statement that eleven of
his urine samples yielded invalid results. Indeed, one can read the sentencing
transcript to suggest that, regardless of whether Warren’s counsel knew in
advance of the invalid urine samples, Warren himself did, responding to the
district court’s comment by referencing his “NLT [National Laboratory Testing]
results.” Nor do we conclude that Warren has shown that the court’s
consideration of the invalid urine samples was material to Warren’s sentence.
See Tobias, 662 F.2d at 388. While the district court referred several times to
the invalid urine samples, the court closed the hearing by resting on Warren’s
admitted, positive test result in February 2012: “It doesn’t matter what the
numbers are. Six months he was out before he started missing—getting caught
misbehaving.” Relatedly, Warren himself acknowledged that he had gotten
“caught in [his] old rut.”
We hold that the district court was not required, by Federal Rule of
Criminal Procedure 32.1 or the Due Process Clause, to provide Warren with pre-
sentencing notice of all points raised in the revocation sentencing colloquy, here
especially noting the invalid urine samples. Warren also does not show that the
district court relied on materially erroneous information in pronouncing
sentence. We find no procedural error in Warren’s revocation sentence.
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II. Substantive Unreasonableness
The district court sentenced Warren to the statutory maximum of twenty-
four months, ten months above the upper end of the eight-to-fourteen month
range recommended by the policy statement at U.S.S.G. § 7B1.4(a). We review
a preserved objection to a sentence’s substantive reasonableness for an abuse of
discretion, examining the totality of the circumstances. United States v. Fraga,
704 F.3d 432, 439–40 (5th Cir. 2013); see Miller, 634 F.3d at 843.2 “The fact that
the appellate court might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the district court.” Gall v.
United States, 552 U.S. 38, 51 (2007) (internal quotation marks omitted). Our
deferential review is informed by the knowledge that “[t]he sentencing judge has
access to, and greater familiarity with, the individual case and the individual
defendant before him than the Commission or the appeals court.” Id. at 51–52
(internal quotation marks omitted). A sentence is substantively unreasonable
if it “(1) does not account for a factor that should have received significant
weight, (2) gives significant weight to an irrelevant or improper factor, or (3)
represents a clear error of judgment in balancing the sentencing factors.” United
States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007) (internal quotation marks
omitted).
Warren argues his sentence is substantively unreasonable because the
district court gave no weight to the § 7B1.4 recommended sentencing range, and
rested its sentence in part on the unfounded assumptions that Warren’s drug
2
As described above, even if we were to hold that the sentence was substantively
unreasonable as an abuse of the district court’s discretion, under our “plainly unreasonable”
standard of review, we would vacate the sentence only if the district court’s “error was obvious
under existing law.” Miller, 634 F.3d at 843–44.
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use was not the product of addiction and that Warren was not intelligent,
motivated, or cooperative.
At sentencing, Warren objected that his sentence was above the guidelines
range, but he made no objection on the specific grounds he now raises. Our
review, therefore, is for plain error. See Hernandez–Martinez, 485 F.3d at 272
(“Hernandez is incorrect that simply asking the court to sentence him within the
Guidelines preserves an argument of specific legal error.”). “We have routinely
affirmed revocation sentences exceeding the advisory range, even where the
sentence equals the statutory maximum.” United States v. Casey, 340 F. App’x
199, 200 (5th Cir. 2009) (unpublished); see United States v. Whitelaw, 580 F.3d
256, 265 (5th Cir. 2009) (holding it was not plain error for the district court to
sentence the defendant to a thirty-six-month, statutory-maximum sentence on
revocation of supervised release, despite a § 7B1.4 range of four to ten months);
United States v. Jones, 484 F.3d 783, 792–93 (5th Cir. 2007) (holding same for
a statutory-maximum, twenty-four-month sentence when the recommended
range was between six and twelve months, but vacating and remanding for
clarification on separate grounds); Mathena, 23 F.3d at 89, 93–94 (finding the
defendant’s revocation sentence, at a statutory-maximum, thirty-six months,
was not plainly unreasonable where the applicable § 7B1.4 range was between
six and twelve months).
Warren does not persuade us his case warrants a different result. The
district court did not make explicit reference at the hearing to the policy
statement sentencing range in U.S.S.G. § 7B1.4(a). Nonetheless, we find in that
omission no plain error that affected Warren’s substantial rights, as the district
court extensively discussed the unique factors in Warren’s case it believed
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Case: 12-20203 Document: 00512315841 Page: 18 Date Filed: 07/22/2013
No. 12-20203
supported a higher sentence, and Warren points to no suggestion in the record
that had the court placed emphasis on the policy statement range it would have
handed down a lesser sentence. See United States v. Caton, 430 F. App’x 327,
329 (5th Cir. 2011) (unpublished); Broussard, 669 F.3d at 553.
Beyond the district court’s frustration with Warren for failing repeatedly
to avail himself of the opportunities supervised release afforded him to correct
his behavior, the district court adverted to, and the petition to revoke was
founded upon, a substantial collection of undisputed facts supporting the
punishment meted out, including: Warren’s failure to attend or to benefit from
substance abuse counseling; his positive urine sample well within one year of
release from prison and his subsequent written denial to the Probation Office
that he had used marijuana; his prior arrest for marijuana possession, and his
failure to report it to the Probation Office within seventy-two hours, on which
the court refrained from acting; and the assessment that Warren had refused to
admit he had a drug problem and turned down residential drug treatment. The
district court made clear its belief that, in light of Warren’s particular history,
only a relatively severe, incarcerative revocation sentence was sufficient
punishment.
CONCLUSION
We conclude the district court’s revocation sentence does not warrant
reversal, as either procedurally or substantively unreasonable, hence we
AFFIRM.
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