Case: 10-60612 Document: 00511389183 Page: 1 Date Filed: 02/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2011
No. 10-60612
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
RICHARD BUCKMAN,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:07-CR-120-1
Before D EMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
Richard Buckman appeals the sentence imposed following the revocation
of his supervised release subsequent to his convictions for two counts of willfully
failing to file federal income tax returns. The district court revoked both terms
of Buckman’s supervised release, and it sentenced Buckman to 10 months of
imprisonment on each revocation, the sentences to be served consecutively for
a total sentence of 20 months of imprisonment.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-60612
Buckman argues that the sentence was substantively unreasonable. He
asserts that while the sentence for each revoked term of supervised release was
within the advisory guidelines range, the district court’s ordering that the
sentences run consecutively made his sentence a 20-month sentence that was
effectively twice as high as the top of the guidelines range. He maintains that
the sentence was unreasonable because it was two and a half times greater than
the sentence for his original convictions and his original offenses were more
serious than his supervised release violations. He contends that his sentence
was greater than necessary to satisfy the goals of 18 U.S.C. § 3553(a) because he
did not abscond, because he communicated well with his probation officer,
because it was not necessary to provide for adequate deterrence, because it was
not necessary to protect the public, and because it did not account for the need
he had for educational or vocational training. Buckman concludes “that the
district court committed reversible error by misapplying the § 3553(a) factors.”
For the first time in his reply brief, Buckman argues that the explanation
for the sentence given at the revocation hearing was insufficient and that the
explanation for the sentence provided in the written judgment was insufficient.
As these arguments were not raised in Buckman’s initial brief, we do not
consider them. See United States v. Jimenez, 509 F.3d 682, 693 n.10 (5th Cir.
2007).
We review revocation sentences under “(a) both the ‘plainly unreasonable’
and the Booker unreasonableness standards of review or (b) the more exacting
Booker unreasonableness standard.” United States v. McKinney, 520 F.3d 425,
428 (5th Cir. 2008). However, because Buckman did not object to the sentence
as unreasonable in the district court, we review the sentence for plain error only.
See United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007). To show plain
error, Buckman must show a forfeited error that is clear or obvious and that
affects his substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). If he makes such a showing, we have the discretion to correct the error
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No. 10-60612
but will do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
On revocation of supervised release, the district court may impose any
sentence that falls within the statutory maximum term authorized. McKinney,
520 F.3d at 427. While the 20-month total sentence exceeded the advisory
guidelines range, the total sentence was within the statutory maximum, the
sentence on each revoked term of supervised release was within the guidelines
range, and the district court had the authority to order that the sentences run
consecutively. See United States v. Gonzalez, 250 F.3d 923, 927-29 (5th Cir.
2001). Although Buckman maintains that his original offenses were more
serious than his supervised release violations, his original convictions were for
misdemeanor offenses while his supervised release violations included conduct
constituting a felony offense. See 18 U.S.C. § 1001; 26 U.S.C. § 7203. The
district court explained that it sentenced Buckman to 20 months of
imprisonment based upon the § 3553(a) factors to promote respect for the law,
to provide deterrence, and to protect the community because Buckman
intentionally violated the terms of his supervised release by failing to perform
community service and pay restitution, by leaving the judicial district after being
denied permission to travel by his probation officer, and by purposefully signing
false monthly reports. By arguing that the sentence was greater than necessary
and that the district court misapplied the § 3553(a) factors, Buckman is
essentially requesting that we reweigh the § 3553(a) factors, which we may not
do. See Gall v. United States, 552 U.S. 38, 51 (2007). Revocation sentences
exceeding the guideline range but not exceeding the statutory maximum have
been upheld as a matter of routine against challenges that the sentences were
substantively unreasonable. See United States v. Whitelaw, 580 F.3d 256, 265
(5th Cir. 2009). As the sentence did not exceed the statutory maximum, it did
not constitute plain error. See id.
AFFIRMED.
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