United States v. Brian Benton

Case: 15-10392 Document: 00513305183 Page: 1 Date Filed: 12/11/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 15-10392
Summary Calendar
United States Court of Appeals
Fifth Circuit

FILED
December 11, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee

v.

BRIAN LOWELL BENTON,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-8-1

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Brian Lowell Benton appeals the 24-month
sentence of imprisonment and the 24-month term of supervised release
imposed following the revocation of his supervised release for his conviction for
conspiracy to manufacture, distribute, and possess with the intent to distribute
methamphetamine. Benton argues that his sentence, which exceeds the range
set forth in the nonbinding policy statements of the Sentencing Guidelines, is

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10392

procedurally unreasonable because the district court failed to articulate
sufficient reasons for the sentence.
Benton concedes that any argument challenging the requirement to
preserve an issue by specific objection is foreclosed in light of this court’s
precedent: He raises the issue for further review only. As Benton
acknowledges, he did not specifically object to the adequacy of the district
court’s reasons for the sentence imposed, so our review is for plain error. See
United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). Under the
plain error standard, Benton must show a forfeited error that is clear or
obvious and that affected his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). We have discretion to correct such an error, but we
will do so only if it seriously affects the fairness, integrity, or public reputation
of the proceedings. Id.
We evaluate the adequacy of the explanation of a revocation sentence
with reference to Rita v. United States, 551 U.S. 338 (2007). Whitelaw, 580
F.3d at 261. The record reflects that the court implicitly considered Benton’s
mitigating arguments, but determined that a sentence above the advisory
range was appropriate in light of his criminal history. Although the court’s
explanation was brief, it was sufficient in the context of the revocation hearing,
so Benton has not shown a clear or obvious error. See Whitelaw, 580 F.3d at
261.
Neither were Benton’s substantial rights affected. The record of the
sentencing proceedings in this case allows us to conduct a meaningful appellate
review. See id. at 264. Nothing in the record suggests that a more thorough
explanation would have resulted in a shorter sentence. Id. at 264-65. Finally,
Benton’s argument, raised only to preserve it for further review, that Whitelaw
was wrongly decided is unavailing, as we may not overrule Whitelaw absent

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No. 15-10392

an en banc or superseding Supreme Court decision. See United States v.
Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002).
The judgment of the district court is AFFIRMED.

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