Case: 20-50519 Document: 00515790157 Page: 1 Date Filed: 03/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 22, 2021
No. 20-50519
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Amanda Gale Mangiapane,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:13-CR-193-1
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
In 2013, Amanda Gale Mangiapane pleaded guilty to receipt of a
firearm by a person under indictment, in violation of 18 U.S.C. § 922(n). She
was sentenced to five-years’ probation in lieu of imprisonment. The
Government moved to revoke Mangiapane’s probation in 2017, alleging she:
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-50519
tested positive for cocaine; failed to appear for her drug screening; and failed
to notify her probation officer of a change in her residence. The district court
revoked her probation and sentenced her to, inter alia, six-months’
imprisonment and 24-months’ supervised release. In May 2020,
Mangiapane’s probation officer petitioned the district court to revoke
supervised release, because Mangiapane admitted to violating the terms of
her supervised release by drinking alcohol. The court revoked supervised
release and sentenced her to, inter alia, 18-months’ imprisonment (the
revocation sentence), an upward departure from the Sentencing Guidelines
range of four to ten-months’ imprisonment.
Mangiapane challenges the substantive reasonableness of her
revocation sentence, asserting the court relied on improper factors in
determining the sentence: her original sentence of probation and her drug-
and-alcohol addictions. She also asserts: the court violated the Fifth
Amendment’s Due Process and Double Jeopardy clauses by basing the
revocation sentence on her past probationary sentence; and it erred by
predicating its upward departure on her repeated use of alcohol and
controlled substances.
Although Mangiapane did not object in district court to her revocation
sentence, her substantive-reasonableness challenge is “reviewed for abuse of
discretion rather than plain error because [s]he sought a lower sentence than
what the court ultimately imposed”. United States v. Cuddington, 812 F.
App’x 241, 242 n.1 (5th Cir. 2020); Holguin-Hernandez v. United States, 140
S. Ct. 762, 767 (2020) (holding defendant properly preserved a claim that his
“sentence was unreasonably long by advocating for a shorter sentence and
thereby arguing, in effect, that this shorter sentence would have proved
‘sufficient,’ while a [longer sentence] would be ‘greater than necessary’ to
‘comply with’ the statutory purposes of punishment”) (quoting 18 U.S.C.
§ 3553(a)).
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Concerning the substantive reasonableness of the revocation
sentence, the court relied on appropriate § 3553(a) factors in determining an
18-month sentence was warranted. It addressed: the nature and
circumstances of Mangiapane’s violation; her history and characteristics;
and the need to deter her from future criminal activity and provide her with
needed correctional treatment. See 18 U.S.C. §§ 3553(a) and 3583(e)(3); see
United States v. Warren, 720 F.3d 321, 332–33 (5th Cir. 2013). Along that
line, the court did not abuse its discretion by considering Mangiapane’s
history of alcohol-and-drug abuse, as the “nature and circumstances” of her
violation involved alcohol use, and her “history and characteristics”
indicated she would continue to violate her supervised-release conditions by
using alcohol or drugs. 18 U.S.C. § 3553(a)(1). Further, the court did not
abuse its discretion by considering her original, lenient sentence (5-years’
probation where the Guidelines sentencing range was 12 to 18-months’
imprisonment) in imposing the revocation sentence, because her original
sentence of probation was a downward departure from the applicable
Guidelines sentencing range. See U.S.S.G. § 7B1.4, cmt. n.4 (“Where the
original sentence was the result of a downward departure . . . an upward
departure may be warranted.”).
As Mangiapane concedes, she did not raise the Fifth Amendment and
basing-a-departure-on-drug-dependence-and-alcoholism issues in district
court. Because they were not preserved, review is only for plain error. E.g.,
United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that
standard, she must show a forfeited plain error (clear or obvious error, rather
than one subject to reasonable dispute) that affected her substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If she makes that showing,
we have discretion to correct the reversible plain error, but generally should
do so only if it “seriously affect[s] the fairness, integrity or public reputation
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of judicial proceedings”. Id. For the following reasons, the court did not
commit the requisite clear or obvious error for either issue.
Regarding one of the two Fifth Amendment challenges, we have
repeatedly held: “Post-revocation sanctions are not a separate penalty for
purposes of the Double Jeopardy clause—they are part of the penalty for the
original offense”. United States v. Jackson, 559 F.3d 368, 371 (5th Cir. 2009).
Moreover, Mangiapane does not cite the above-described requisite
precedent for her claims that her revocation sentence violated the Due
Process or Double Jeopardy clause. See United States v. Salinas, 480 F.3d
750, 756 (5th Cir. 2007) (“An error is considered plain . . . only if the error is
clear under existing law.”) (citing United States v. Olano, 507 U.S. 725, 734
(1993)).
For her final claim—concerning basing an upward departure from the
Guidelines on her drug dependence and alcoholism—Mangiapane cites
United States v. Lopez: the “[G]uidelines admonish that drug dependence is
not ordinarily relevant in determining whether a departure is warranted”.
875 F.2d 1124, 1127 (5th Cir. 1989) (citing U.S.S.G. § 5H1.4). But the court
did not base its upward-departure decision on Mangiapane’s drug
dependence or alcoholism. As it stated, it “depart[ed] because of the
repeated noncompliance with the terms of supervision [and] . . . her tendency
towards recidivism”, i.e., because, after violating the conditions of
supervision during her probationary term, she twice violated the terms of her
supervised release by drinking alcohol or using drugs. The court properly
explained its reasons for imposing an upward departure, see 18 U.S.C.
§ 3553(c), and did not commit plain error by basing the departure on
Mangiapane’s repeatedly violating the terms of supervision and her tendency
towards recidivism, see United States v. Allison, 447 F.3d 402, 407 (5th Cir.
2006) (“A court does not abuse its discretion in deciding to depart upward
when its reasons for doing so advance the objectives in 18 U.S.C.
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§ 3553(a)(2), are authorized by § 3553(b), and are justified by the facts of the
case.”); see also United States v. Groessel, No. 94-50253, 1994 WL 652474, at
*2 (5th Cir. 1 Nov. 1994) (affirming the district court’s imposing an “upward
departure . . . based upon [defendant’s] repeated violations of the conditions
of his supervised release”).
AFFIRMED.
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