Case: 16-30497 Document: 00513885839 Page: 1 Date Filed: 02/22/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-30497
Fifth Circuit
FILED
Summary Calendar February 22, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
WILLIAM FRYE, also known as William Lekeith Frye,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CR-331-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
William Frye appeals the sentence imposed upon revocation of his
supervised release. He contends that the district court erred by failing to state
reasons for the sentence, which exceeded the advisory range recommended
under the guidelines policy statements. Reviewing for plain error, we conclude
that the failure to state explicit reasons for the sentence was clear or obvious
error. See United States v. Whitelaw, 580 F.3d 256, 259, 262 (5th Cir. 2009).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-30497 Document: 00513885839 Page: 2 Date Filed: 02/22/2017
No. 16-30497
However, Frye has not shown prejudice as required to establish that the error
affected his substantial rights. See id. at 264. He asserts that the failure to
state reasons affects his substantial rights because he had no opportunity to
present arguments or evidence as to the appropriate sentence. However, he
does not explain how the court’s failure to provide reasons prevented him from
making arguments or offering evidence. Nor does he describe the arguments
or evidence he would have presented.
Relying on Whitelaw, 580 F.3d at 263, Frye also contends that the
district court’s failure to give reasons affects his substantial rights because it
impairs his ability to appeal the sentence and this court’s ability to review it.
The district court found that Frye was lying during the revocation hearing
when he claimed that he did not know he was violating the conditions of his
supervised release by traveling to Rhode Island instead of entering a halfway
house in New Orleans. The court also detailed his lengthy history of criminal
offenses and supervised release violations and reflected that he had engaged
in “pattern of uncooperative behavior.” It is clear that Frye’s history and
characteristics--i.e., his dishonesty, lack of cooperation, and past refusal to
comply with the conditions of supervised release--were reasons for the above-
guidelines sentence. See 18 U.S.C. § 3553(a)(1). The finding of a pattern of
uncooperative behavior also indicates that the court imposed the sentence to
afford adequate deterrence. See § 3553(a)(2)(B). Because the record allows
Frye to challenge the sentence and this court “to conduct a meaningful
appellate review,” his argument is unavailing. See Whitelaw, 580 F.3d at 263-
64 (quote on 264). Moreover, even if Frye had shown an effect on his
substantial rights, we would not exercise our discretion to correct the error
because nothing in the record suggests that the district court would impose a
lighter sentence on remand. See id. at 264-65.
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Case: 16-30497 Document: 00513885839 Page: 3 Date Filed: 02/22/2017
No. 16-30497
In his reply brief, Frye claims that he was denied the right of allocution.
Ordinarily, we do not consider arguments raised for the first time in a reply
brief. United States v. Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir. 2006).
Even if we were to consider the claim here, we would not exercise our discretion
to correct the error, if any, under the applicable plain error standard of review.
See United States v. Avila-Cortez, 582 F.3d 602, 604 (5th Cir. 2009). Frye was
given the opportunity to allocute during his sentencing and a previous
revocation hearing before the same judge, and he offers no explanation of what
he would have said in mitigation of his sentence. See id. at 604-06.
AFFIRMED.
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