United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS January 3, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-10330
c/w No. 05-10332
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY DEAN POSEY,
Defendant-Appellant.
_______________________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
(No. 2:97-CR-61-ALL & No. 2:98-CR-28-ALL)
_______________________________________________________________
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gary Dean Posey appeals the consecutive 24-months sentences
imposed following the revocations of his supervised release. He
contends that, pursuant to United States v. Booker, 543 U.S. 220
(2005), and United States v. Mares, 402 F.3d 511, 519 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005), the sentences were unreasonable
*
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this opinion should not be published and is not precedent except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.
because they exceeded the recommended range without sufficient
reasons being stated by the district court. The Government
concedes the district court erred by assessing punishment under the
Guidelines range for Grade B violations of Posey’s supervised
release despite Posey’s having pleaded true to only Grade C
violations.
As the Government contends, because Posey did not object to
the sentences imposed at the revocation hearings, review is only
for plain error. See United States v. Olano, 507 U.S. 725, 731-37
(1993). To establish reversible plain error, a defendant must show
a clear or obvious error affected his substantial rights. E.g.,
United States v. Castillo, 386 F.3d 632, 636 (5th Cir.), cert.
denied, 543 U.S. 1029 (2004). Even if the defendant establishes
these factors, we retain discretion to correct the error;
generally, we will do so only if it “affects the fairness,
integrity, or public reputation of judicial proceedings”. Id.
Posey has demonstrated obvious error based on the Guidelines
miscalculation. He has failed, however, to demonstrate the error
affected his substantial rights. Although the revocation sentence
resulted from a misapplication of the Guidelines, the sentences
imposed fell within the two-year statutory maximum authorized upon
revocation. See 18 U.S.C. §§ 922(g) and 924(a)(2); 18 U.S.C.
§ 3146 (a) and (b); 18 U.S.C. § 3583(e)(3). Posey does not claim
the district court would have imposed a lesser sentence but for the
Guidelines miscalculation and the record is devoid of any such
indication. Therefore, Posey has failed to demonstrate the
revocation sentences constituted reversible plain error. Moreover,
because each 24-months sentence did not exceed the statutory
maximum, it was not unreasonable. United States v. Boykin, No. 05-
50704, 2006 WL 616031 at *1 (5th Cir.), cert. denied, 127 S. Ct.
153 (U.S. Oct. 02, 2006) (unpublished); United States v. Esquivel,
98 Fed. Appx. 995, 996 (5th Cir. 2004) (unpublished).
AFFIRMED