Case: 18-11463 Document: 00515040619 Page: 1 Date Filed: 07/18/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11463 FILED
Summary Calendar July 18, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DUSTIN LARMON MCDONALD,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:13-CR-94-1
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Dustin Larmon McDonald challenges the 18-month prison sentence
imposed upon revocation of his supervised release. For the first time on appeal,
he argues that the district court procedurally erred by failing to provide an
adequate explanation for its sentencing decision. In particular, he asserts as
follows: the district court failed to address his arguments in mitigation; its
perfunctory statement regarding deterrence and protection of the public did
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11463 Document: 00515040619 Page: 2 Date Filed: 07/18/2019
No. 18-11463
not illuminate its reasons for imposing a sentence above the recommended
range; the court did not explain how these factors related to his case; the error
was plain; it affected his substantial rights; and this court should exercise its
discretion to correct the error.
Because McDonald did not preserve his claim of procedural error for
appeal by first raising it in the district court, plain error review applies. See
United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013). Although
McDonald argues that an objection was unnecessary to preserve his claim, he
correctly concedes that this argument is foreclosed under circuit precedent,
and he raises it solely to preserve it for further review. See id. at 326-27;
United States v. Whitelaw, 580 F.3d 256, 261-62 (5th Cir. 2009).
McDonald has not shown clear or obvious error. See Puckett v. United
States, 556 U.S. 129, 135 (2009). Before pronouncing its sentencing decision,
the district court heard defense counsel’s arguments in mitigation, particularly
facts concerning McDonald’s educational and employment accomplishments
after his release from prison and his struggles with addiction. Additionally,
the district court, the same court that presided over McDonald’s original
sentencing, addressed the need for the sentence to provide adequate deterrence
and protect the public, thereby explicitly identifying those 18 U.S.C.
§ 3553(a)(2) factors that the court deemed relevant to its sentencing
determination. Although the court’s explanation was brief, we are satisfied
that the stated reasons show, in the context of McDonald’s case, that the court
considered the arguments presented and had a reasoned basis for imposing an
above-range sentence. See Whitelaw, 580 F.3d at 261.
The judgment of the district court is AFFIRMED.
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