Case: 11-30336 Document: 00511654027 Page: 1 Date Filed: 11/03/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 3, 2011
No. 11-30336
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERT HAYES,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:02-CR-83-1
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Robert Hayes appeals the sentence imposed after revocation of supervised
release. His 24-month sentence was the statutory maximum sentence which was
below the recommended guidelines range of 33-41 months.
Hayes contends that the sentence was unreasonable because the court did
not select a sentence that properly balanced the objectives of punishment and
rehabilitation. He argues that imposition of the statutory maximum sentence
did not serve the purpose of rehabilitation and shows that the court did not
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-30336 Document: 00511654027 Page: 2 Date Filed: 11/03/2011
No. 11-30336
adequately consider mitigating factors (e.g., his health problems or his success
in completing rehabilitative programs). Hayes further asserts that the district
court wrongly based the sentence on “punishment,” a factor that is listed in 18
U.S.C. § 3553(a)(2), and barred from consideration by 18 U.S.C. § 3583(e) under
United States v. Miller, 634 F.3d 841, 844 (5th Cir), petition for cert. filed (May
27, 2011) (No. 10-10784). Because Hayes only offered a general objection in the
district court to the reasonableness of his sentence and did not object on the
specific grounds he raises on appeal, we review his arguments for plain error.
United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); see also United States
v. LeBoeuf, 10-10849, 2011 WL 3279203, at * 2 (5th Cir. Aug. 1,
2011)(unpublished)(noting that a general objection to the reasonableness of a
revocation sentence does not preserve the argument that the district court
considered an improper sentencing factor).
Hayes’s contention that the district court improperly based his sentence
on “punishment” is unavailing. The record supports that revocation of Hayes’s
supervised release was mandated by § 3583(g) because he violated an express
condition of supervised release by being convicted in Louisiana state court of
possession of heroin with intent to distribute, i.e., a drug possession crime
punishable by more than one year. See § 3583(g). Section 3583(g) does not
expressly invoke the sentencing factors of § 3553(a), or the limits imposed by the
first clause of §3583(e). See § 3583(g); United States v. Giddings, 37 F.3d 1091,
1095 (5th Cir. 1994) (noting that a court need not consider § 3553(a) when
revocation is mandated by § 3583(g)). Thus, Hayes fails to show that it is “clear
or obvious” or “obvious under existing law” that a sentence imposed when
revocation is mandatory must be limited by § 3583(e). Cf. United States v.
Larison, 432 F.3d 921, 923 (8th Cir. 2006) (holding that the district court’s
sentencing decision was not constrained by the factors specifically enunciated
in § 3583(e) where revocation was mandated by § 3583(g)).
2
Case: 11-30336 Document: 00511654027 Page: 3 Date Filed: 11/03/2011
No. 11-30336
Hayes’s assertion that his sentence did not represent a proper evaluation
of various competing interests and did not properly account for mitigating
factors is without merit. The record reflects that the court considered the
competing sentencing objectives and concluded that a 24-month sentence
appropriately balanced those factors. The court acknowledged Hayes’s serious
health problems and specifically considered whether Hayes’s previous efforts at
rehabilitation warranted a lesser sentence. However, the court concluded that
Hayes’s history and characteristics outweighed his rehabilitative efforts and
justified the sentence imposed. To the extent that Hayes disagrees with the
weight that the court gave to the factors argued, his claim is unavailing; the
district court was permitted to use its judgment to weigh the relative importance
of each factor, and we may not reweigh those factors. See Gall v. United States,
552 U.S. 38, 51 (2007).
The judgment of the district court is therefore AFFIRMED.
3