Case: 09-50912 Document: 00511242606 Page: 1 Date Filed: 09/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 23, 2010
No. 09-50912
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GREGORY SCOTT PERKINS,
Defendant-Appellant
c/w No. 09-51009
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GREGORY SCOTT PERKINS, also known as Gregory Scott Hawkins,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:06-CR-351-1
USDC No. 5:06-CR-88-1
Case: 09-50912 Document: 00511242606 Page: 2 Date Filed: 09/23/2010
No. 09-50912 c/w
No. 09-51009
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Gregory Scott Perkins was sentenced to two
concurrent five-month terms of imprisonment and two concurrent terms of one
year of supervised release. Shortly afterward, the same district court sentenced
Perkins to two concurrent four-month terms of imprisonment and two
concurrent one-year terms of supervised release. The four-month terms were
ordered to be run consecutively to the five-month terms. The district court later
revoked all four terms of supervised release, and Perkins now appeals the four
consecutive one-year sentences imposed on revocation. We affirm.
Perkins maintains that his revocation sentences must be vacated as being
either unreasonable or plainly unreasonable. He contends that the sentences
were greater than necessary to satisfy the requirements of 18 U.S.C. § 3553(a).
As he did in the district court, he advances the following arguments: the district
court was misled by the government’s argument that a total sentence of 48
months would be below the range suggested by the Sentencing Guidelines; a
court may not aggregate unimposable ranges in determining a revocation
sentence; there could be only one sentence encompassing all four revocations;
and various circumstances counseled in favor of mitigating his punishment.
Before United States v. Booker, 543 U.S. 220 (2005), an appellate court
reviewed a sentence imposed for an offense for which there was no applicable
Sentencing Guideline to determine whether it was plainly unreasonable or in
violation of law. 18 U.S.C. § 3742(e)(4); United State v. Mathena, 23 F.3d 87, 89
(5th Cir. 1994); see also Koon v. United States, 518 U.S. 81, 96-97 (1996) (stating
that sentences imposed pursuant to § 3742 were to be reviewed for abuse of
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 09-50912 c/w
No. 09-51009
discretion). Booker directed appellate courts to review sentences for
reasonableness and to apply an abuse of discretion standard in doing so. Gall
v. United States, 552 U.S. 38, 46, 51 (2007). It is unclear whether the validity
of a post-Booker revocation sentence turns on whether it is held to be reasonable
or to be plainly unreasonable. United States v. Davis, 602 F.3d 643, 647 n.5 (5th
Cir. 2010). The government, however, contends that Perkins is limited to review
for plain error because he did not object to the sentence actually imposed. But
given that Perkins is unable to show that his sentence is infirm even under an
abuse of discretion standard, we need not decide whether the plain error
standard applies. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir.
2008).
On revocation of supervised release, a district court may impose any
sentence that falls within the statutory maximum term, but must consider the
Guidelines’ policy statements, see U.S.S.G. Ch.7, Pt.B, and the factors
enumerated in § 3553(a) before it does so. Davis, 602 F.3d at 646. As Perkins
acknowledges, the statutory maximum term of imprisonment on the revocation
of his supervised release was one year for each conviction. See § 3583(e)(3).
Imposing one-year prison terms on revocation of Perkins’s supervised release
was therefore proper. See United States v. Pena, 125 F.3d 285, 288 (5th Cir.
1997). We reject Perkins’s contention that it was error to order that the
sentences run consecutively. A district court has the discretion to impose
consecutive sentences on revocation. 18 U.S.C.§ 3584(a); United States v.
Cotroneo, 89 F.3d 510, 512 (5th Cir. 1996). Further, the transcript of the
revocation hearing shows that the district court considered the § 3553(a) factors
and the Guidelines’ policy statements, understood and applied the statutory
limitation on the sentencing range suggested by those statements, and
understood its authority to order the four sentences to be run consecutively.
AFFIRMED.
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