United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 1, 2007
Charles R. Fulbruge III
Clerk
No. 05-10292
c/w No. 05-10573
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS HARRIS,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-347-ALL-H
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Marcus Harris was sentenced to a 24-month term of
imprisonment following the revocation of a term of supervised
release imposed as part of a 1997 sentence for bank fraud.
Harris timely moved for a reduction or correction of sentence
pursuant to FED. R. CRIM. P. 35(a) on the basis that the
applicable advisory Sentencing Guidelines range was 12-to-18
months, rather than the 24-to-30 months cited by the district
court at sentencing. The district court denied the Rule 35(a)
*
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this opinion should not be published and is not precedent except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.
No. 05-10292
c/w No. 05-10573
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motion, citing specific reasons for its selection of a 24-month
sentence. Harris appealed both the initial revocation sentence
and the district court’s denial of Rule 35(a) relief.
Long after briefing was completed in this case, counsel
moved to withdraw and Harris moved to proceed pro se on appeal
based on Harris’s desire to raise additional arguments not
addressed in counsel’s briefs. Harris’s assertion of his right
of self-representation is untimely. See United States v. Wagner,
158 F.3d 901, 902 (5th Cir. 1998). Consequently, counsel’s
motion to withdraw, Harris’s motion to appeal pro se, and
Harris’s motion to file a supplemental appellate brief are
denied.
Harris has abandoned his appeal of the denial of his Rule
35(a) motion by failing to brief the issue. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Harris argues
that the district court plainly erred by not specifically
addressing the 18 U.S.C. § 3553(a) factors during the sentencing
hearing and that his sentence is plain error because it was based
on incorrectly calculated advisory guidelines.
To establish reversible plain error, Harris must identify a
clear or obvious error that affected his substantial rights.
United States v. Olano, 507 U.S. 725, 731-37 (1993). Even if
Harris establishes these factors, we retain the discretion
whether to correct the error and will generally do so only if the
error “affects the fairness, integrity, or public reputation of
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c/w No. 05-10573
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judicial proceedings.” United States v. Castillo, 386 F.3d 632,
636 (5th Cir.), cert. denied, 543 U.S. 1029 (2004).
The Government concedes that Harris’s sentence is the result
of a misapplication of the Sentencing Guidelines, but it contends
that the error did not affect his substantial rights. Harris’s
revocation sentence was within the three-year statutory maximum
sentence authorized upon revocation. See 18 U.S.C. §§ 1344,
3559(a)(2), 3583(e)(3). The district court’s stated reasons for
denying Harris’s Rule 35(a) motion make it clear that the court
would not have imposed a lesser sentence but for the Guidelines
miscalculation.
Therefore, Harris has failed to demonstrate that his
revocation sentence constitutes reversible plain error.
Moreover, because the 24-month sentence is within 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).
Counsel’s arguments concerning Harris’s original 1997
sentence are irrelevant to the instant appeal and are therefore
not addressed.
AFFIRMED. MOTIONS DENIED.