Case: 10-60249 Document: 00511283527 Page: 1 Date Filed: 11/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 3, 2010
No. 10-60249
c/w No. 10-60251 c/w No. 10-60260 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARK D. O’NEIL,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 1:10-CR-11-1
USDC No. 1:10-CR-12-1
USDC No. 1:10-CR-13-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit judges.
PER CURIAM:*
In these consolidated appeals, Mark D. O’Neil appeals the three
consecutive 20-month sentences imposed following the revocation of his terms
of supervised release. He argues that the district court erred when it found that
he had used cocaine on two separate occasions in October 2009; he also argues
that the district court erred by finding that his acknowledgment of only one use
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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of cocaine on his monthly supervision report constituted the filing of a false
report. O’Neil also asserts that the district court failed to adequately explain its
sentences and that the sentences imposed represented an unreasonable
deviation from the applicable guidelines range.
If a district court finds by a preponderance of the evidence that a
defendant has violated a condition of his supervised release, it has discretion to
revoke supervised release and impose a term of imprisonment. United States v.
McCormick, 54 F.3d 214, 219 (5th Cir. 1995); 18 U.S.C. § 3583(e)(3). The district
court’s factual findings are reviewed for clear error. United States v.
Alaniz-Alaniz, 38 F.3d 788, 790 (5th Cir. 1994).
As an initial matter, we note that O’Neil admitted many of the alleged
violations and he has not appealed other violations found by the district court.
These admitted and unappealed violations, particularly his admitted drug use
and his failure to comply with drug testing requirements, are sufficient by
themselves to support revocation. See McCormick, 54 F.3d at 219 n.3; § 3583(g).
O’Neil does argue that the evidence was insufficient to find that he
admitted using cocaine on two occasions in October 2009. Although a drug
testing report from October 22, 2009, supports O’Neil’s testimony that Probation
Officer Patrick Williams did not perform his drug testing that day, this report
does not directly contradict Officer Williams’ testimony that O’Neil admitted
drug use to him. Because we do not find Officer Williams’ testimony incredible
as a matter of law, we will defer to the district court’s finding that he was
credible. See Alaniz-Alaniz, 38 F.3d at 791. Therefore, the district court did not
clearly err in finding that O’Neil had used cocaine on two occasions in October
2009 or in finding that he submitted a false monthly supervision report.
O’Neil also argues that all of his violations were “Grade C” violations and
that the applicable guideline sentencing range was 8 to 14 months of
imprisonment. He argues that his 20 month sentences were outside of this
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No. 10-60249
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range, that the district court failed to adequately explain its reasons for
imposing non-guideline sentences, and that the extent of the variance from the
8 to 14 month guideline range was unreasonable. Because O’Neil did not object
to his sentence in the district court, our review is for plain error. See United
States v. Davis, 602 F.3d 643, 646-47 (5th Cir. 2010).
All of O’Neil’s sentencing arguments are premised on his assertion that
the district court clearly erred in finding that he had submitted a false monthly
supervision report. For the reasons discussed above, the district court did not
clearly err in making such a finding. O’Neil’s submission of a false monthly
supervision report was a “Grade B” violation, which resulted in a guideline range
of 21 to 27 months of imprisonment. See U.S.S.G. § 7B1.1(a)(2); § 7B1.4(a).
Therefore, his sentencing arguments are based on the flawed premise that his
sentence was an upward variance.
Even if his sentencing arguments were considered, we would conclude that
the district court did not plainly err. The district court provided sufficient
reasons for its choice of sentences. In addition, O’Neil’s sentences were less than
the applicable statutory maximum sentences, and we have routinely upheld
revocation sentences against substantive unreasonableness challenges if the
sentence does not exceed the statutory maximum. See United States v.
Whitelaw, 580 F.3d 256, 265 (5th Cir. 2009).
AFFIRMED.
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