Case: 09-11063 Document: 00511397699 Page: 1 Date Filed: 03/01/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 1, 2011
No. 09-11063 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD MILLER,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, Chief Judge, JOLLY, and GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Donald Miller (“Miller”) appeals the district court’s imposition of a sixty-
month sentence following the revocation of his supervised release term. Miller
argues that his sentence is procedurally and substantively unreasonable because
the trial court erroneously considered factors listed in 18 U.S.C. § 3553(a)(2)(A).
For the reasons stated below, we AFFIRM the district court.
I
Miller pleaded guilty in 2003 to possession with intent to distribute 30
kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The trial
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No. 09-11063
court1 sentenced him to eighty-seven months of imprisonment followed by a five-
year term of supervised release. In September 2009, the Government moved to
revoke Miller’s supervised release, arguing that Miller had violated the terms
of his release by possessing cocaine and by driving while intoxicated (DWI) with
an open container. The Government later waived the DWI allegation. The
district court determined that Miller’s criminal history category was III and that
the Grade C violation, possession of cocaine, resulted in an imprisonment term
of five to eleven months under § 7B1.4 of the Sentencing Guidelines. The district
court departed from the Guideline’s imprisonment range and imposed a prison
term of sixty months, the statutory maximum. The court reasoned the sentence
was appropriate because the original sentencing court had given Miller “a
substantial break,” Miller had “no respect for the law,” and the violation was
essentially “the same type of offense” for which Miller was convicted. In
reaching this decision, the court also considered Miller’s history and
characteristics, the seriousness of the offense, and the need for deterrence.
Miller objected, arguing the sentence was procedurally and substantively
unreasonable due to the factors relied on by the district court. That court
overruled the objection and Miller appealed to us.
II
Miller’s appeal presents two issues. First, he argues that his sentence
requires our adoption of a standard of review for the revocation or modification
of a supervised release term. Second, he asserts that the district court erred by
relying on § 3553(a)(2)(A), which is not listed as one of the factors permitted for
consideration under § 3583(e), the statute governing modification or revocation
of supervised release terms.
1
Miller pleaded guilty in the Southern District of Texas. His case was transferred to
the Northern District of Texas when he moved to Cross Plains, Texas.
2
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No. 09-11063
Prior to United States v. Booker, 543 U.S. 220 (2005), we reviewed the
revocation of sentences under a “plainly unreasonable” standard as described in
18 U.S.C. §§ 3742(a)(4) and (e)(4). See United States v. Stiefel, 207 F.3d 256, 259
(5th Cir. 2000). Booker rendered the Sentencing Guidelines advisory, and
directed courts to review sentences under a reasonableness standard. 543 U.S.
at 259–62. Because Booker considered a Guidelines sentence imposed pursuant
to a conviction, it was unclear whether Booker’s reasonableness standard applied
to the appellate review of supervised release terms. This question has resulted
in a split among circuits. Some courts have adopted or declined to adopt the
reasonableness standard. Compare United States v. Flemming, 397 F.3d 95, 99
(2nd Cir. 2005), and United States v. Miqbel, 444 F.3d 1173, 1176 n.5 (9th Cir.
2006) (both adopting reasonableness standard), with United States v. Crudup,
461 F.3d 433, 437–39 (4th Cir. 2006), and United States v. Kizeart, 505 F.3d 672,
674–75 (7th Cir. 2007) (both holding that Booker had not invalidated the “plainly
unreasonable” standard). Other circuits have held that the two standards are
virtually identical. United States v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir.
2006); United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005). We have not
reached a definitive position, although we have indicated our preference for the
“plainly unreasonable” standard. United States v. Hernandez-Martinez, 485 F.3d
270 (5th Cir. 2007).
We now adopt the standard discussed in Hernandez-Martinez, in which we
agreed with the Fourth Circuit’s holding that Booker had not abrogated
§ 3742(a)(4).2 Hernandez-Martinez, 485 F.3d at 273; Crudup, 461 F.3d at 437.
Under the terms of § 3742, it would be illogical to allow the appeal of a sentence
as “unreasonable,” when § 3742(a)(4) permits for an appeal only if a sentence is
2
In Booker, the Court held that defendants sentenced to supervised release appeal
pursuant to § 3742(a)(4) because supervised release sentences are “imposed where there [i]s
no applicable Guideline.” 543 U.S. at 262.
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“plainly unreasonable.” § 3742(a)(4); see also Hernandez-Martinez, 485 F.3d at
273; Crudup, 461 F.3d at 437. The “plainly unreasonable” standard is also
proper given that the goal of revocation is to punish a defendant for violating the
terms of the supervised release. Under the Guideline’s commentary and
statutory provisions, this aim differs from the objectives outlined for the
imposition of an original sentence. Due to these distinctly different goals, the
use of different reviewing standards is appropriate. Hernandez-Martinez, 485
F.3d at 274. In addition, the Guideline’s non-binding policy statements
regarding sentence revocation demonstrate that the Sentencing Commission
intended “to give district courts substantial latitude in devising revocation
sentences” for defendants who violate the terms of supervised release. Crudup,
461 F.3d at 438. It is appropriate to permit a more deferential standard of
review for the imposition of a new sentence after a court revokes a supervised
release term.
Under the plainly unreasonable standard, we evaluate whether the district
court procedurally erred before we consider “the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.” United States v.
Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal quotations omitted). If a
sentence is unreasonable, then we consider whether the error was obvious under
existing law. United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009).
III
Our review of Miller’s sentence revocation under the plainly unreasonable
standard requires consideration of the district court’s reliance on § 3553(a)(2)(A)
during sentencing. Miller asserts that because § 3583(e) omits the factors
discussed in § 3553(a)(2)(A), the district court erred by stating that the sixty-
month sentence was warranted due to Miller’s lack of “respect for the law.”
Section 3583(e) states that a district court must consider factors outlined
in “section[s] 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6).”
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Missing from this list is § 3553(a)(2)(A), which allows a court to impose a
sentence that reflects “the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense.” Because § 3583(e) does not
forbid reliance on § 3553(a)(2)(A), a circuit split has emerged. Compare Miqbel,
444 F.3d at 1182, and Crudup, 461 F.3d at 439 (both holding that a district court
may not consider § 3553(a)(2)(A)), with United States v. Lewis, 498 F.3d 393,
399–400 (6th Cir. 2007) (permitting consideration of § 3553(a)(2)(A) under
§ 3583(e)).
We agree with the Fourth and Ninth Circuits and hold that it is improper
for a district court to rely on § 3553(a)(2)(A) for the modification or revocation of
a supervised release term. See Crudup, 461 F.3d at 438–39; Miqbel, 444 F.3d at
1181–1183. When sentencing a defendant under § 3583(e), a district court may
not consider § 3553(a)(2)(A) because Congress deliberately omitted that factor
from the permissible factors enumerated in the statute. Russello v. United
States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d
720, 722 (5th Cir. 1972) (“Where Congress includes particular language in one
section of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate
inclusion or inclusion.”); see also Miqbel, 444 F.3d at 1182.
Here, the district court erred by determining that Miller’s sentence was
appropriate due to the “seriousness of the offense,” and Miller’s lack of “respect
for the law.” The Government correctly asserts that the district court listed
additional factors enumerated under § 3583(e). But, as the sentencing transcript
demonstrates, the district court repeatedly stated that it was Miller’s lack of
“respect for the law” that warranted the sixty-month imprisonment term. Thus,
the court clearly considered § 3553(a)(2)(A) and in doing so, that court erred.
Despite this mistake, the district court’s error was not plainly
unreasonable. When the district court sentenced Miller, our circuit’s law on this
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question was unclear and therefore, that court’s consideration of § 3553(a)(2)(A)
was not an obvious error. See United States v. Combs, No. 10-10175, 2010 WL
4872252 (5th Cir. Nov. 30, 2010) (stating that we had not determined whether
§ 3583(e) precludes consideration of § 3553(a)(2)(A)); United States v. Salinas,
480 F.3d 750, 759 (5th Cir. 2007) (holding that because of unsettled case law,
district court’s error was not obvious and therefore, not plain).
IV
Accordingly, we AFFIRM the district court’s judgment.
6