Case: 11-60091 Document: 00511596042 Page: 1 Date Filed: 09/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 8, 2011
No. 11-60091
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FREDDIE MASON,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:01-CR-115-1
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges
PER CURIAM:*
Freddie Mason pleaded guilty to two counts of bank robbery under 18
U.S.C. § 2113(a). After serving out his prison sentence, he began a term of
supervised release in January of 2009. In December of 2010, Mason’s probation
officer petitioned for a warrant for Mason’s arrest on the ground that Mason had
violated the terms of his supervised release by using cocaine and failing to abide
by the conditions of home confinement. A few days later, the probation officer
amended the petition to include a new basis for revocation: Mason’s attempt to
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-60091
use a “whizzinator”—a device a used to substitute another liquid in the place of
the urine of a person taking a drug test—to avoid testing positive for cocaine.
Mason and his attorney did not learn of the whizzinator allegation until the
morning of the revocation hearing about three weeks later. Nevertheless, Mason
pleaded true to all of the allegations in both petitions, and the district court
revoked both terms of Mason’s supervised release.
The district court determined that Mason’s prior criminal history was IV
and that his violation was Grade C, with the result that the policy statements
in Chapter 7 of the Guidelines recommended a sentence in the range of 6-to-12
months.1 Based on Mason’s attempt to deceive the probation officer with the
whizzinator and his steadfast insistence during the revocation hearing that he
did know there was anything wrong with using the device, the district court
determined that an above-Guidelines sentence was appropriate. The statutory
maximum on each count was 24 months.2 The district court sentenced Mason
to 30 months imprisonment: 24 months on one revocation and 6 months on the
other, with the sentences to run consecutively.
On appeal, Mason argues that his sentence was patently unreasonable
because the district court’s decision to impose an above-Guidelines sentence was
based on Mason’s use of the whizzinator and this conduct was not charged in the
original arrest-warrant petition. Revocation sentences are ordinarily reviewed
under a highly deferential “plainly unreasonable” standard.3 However, Mason
1
See U.S. SENTENCING GUIDELINES MANUAL § 7B1.4(a) (Policy Statement) (2010); id.
§ 7B1.1(a)(3) (Policy Statement).
2
See 18 U.S.C. § 3583(e)(3) (providing that a defendant whose supervised release is
revoked may not be required to serve more than two years in prison if the offense that resulted
in the term of supervised released is a class C felony); id. § 3359(a)(3) (providing that 18
U.S.C. § 2113(a) (providing that an offense whose maximum term of imprisonment is ten or
more but less than twenty-five years is a Class C felony); id. § 2113(a) (providing that the
maximum term of imprisonment for bank robbery is twenty years).
3
See United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011), petition for cert. filed,
No. 10-10784 (May 27, 2011).
2
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No. 11-60091
did not object during the revocation hearing that the length of his sentence was
unreasonable, so we review his sentence only for plain error.4 To show plain
error, Mason must identify a forfeited error, clear under existing law, that
affects his substantial rights and seriously affects the fairness, integrity, or
public reputation of judicial proceedings.5
Mason’s argument that the revocation petition failed to charge him with
using the whizzinator is factually inaccurate. The amended petition includes
this charge. Mason did not receive notice of the amendment until the morning
of the revocation hearing. However, his attorney declined the district court’s
offer of additional time to confer with Mason about the allegation, to which
Mason immediately pleaded true. Even assuming arguendo that Mason had a
due process right to receive earlier notice of the amendment, he waived that
right by pleading true to the allegation.6 Accordingly, Mason has not shown that
the district court committed error, plain or otherwise, by considering his use of
a whizzinator in determining the sentence.
When revoking supervised release, a district court may impose any
sentence within the statutory maximum7 and is free to order that the sentences
run consecutively.8 Because neither of Mason’s sentences exceeded the statutory
maximum, the district court did not plainly err in imposing them.9
AFFIRMED.
4
See United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007).
5
See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
6
See United States v. Holland, 850 F.2d 1048, 1050–51 (5th Cir. 1988).
7
United States v. McKinney, 520 F.3d 425, 427 (5th Cir. 2008).
8
United States v. Gonzalez, 250 F.3d 924, 926–27 (5th Cir. 2001).
9
See United States v. Whitelaw, 580 F.3d 256, 265 (5th Cir. 2009).
3