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United States v. Mangiapane

Court: Court of Appeals for the Fifth Circuit
Date filed: 2021-03-22
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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   opinion should not be published and is not precedent except under the limited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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                                     No. 20-50519


          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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                                     No. 20-50519


   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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