Case: 21-30721 Document: 00516378286 Page: 1 Date Filed: 06/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 30, 2022
No. 21-30721 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Alvin Kincerely Law, Jr.
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:17-CR-240-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Alvin Kincerely Law, Jr., appeals the 24-month above-guidelines
sentence imposed following the revocation of his supervised release, which
was part of his sentence for being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). He contends that the revocation sentence was
*
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opinion should not be published and is not precedent except under the limited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. 21-30721
based upon the seriousness of a battery charge pending against him in state
court and the district court’s desire to punish him for that offense and that
the district court therefore improperly relied upon a 18 U.S.C.
§ 3553(a)(2)(A) factor in determining the sentence. He also argues that the
sentence imposed is substantively unreasonable because the district court
failed to give appropriate weight to the correctly calculated guidelines range
and gave too much weight to the pending battery charge.
To the extent Law argues that his sentence was substantively
unreasonable because the district court gave significant weight to an
improper sentencing factor, our review is for plain error because he did not
raise that argument before the district court. See United States v. Cano, 981
F.3d 422, 425 (5th Cir. 2020). He otherwise properly preserved a challenge
to the substantive reasonableness of his sentence. Id. Sentences imposed
upon revocation of supervised release are reviewed under the plainly
unreasonable standard when an issue has been preserved for appeal. Id.
Excluded from consideration when determining a revocation sentence
are those factors listed in § 3553(a)(2)(A), which are the need for the
sentence imposed “to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense.” See
§ 3553(a)(2)(A); United States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011).
The district court did not expressly reference the § 3553(a)(2)(A) prohibited
factors, and, even assuming, arguendo, that it did implicitly consider those
factors, it also implicitly considered the nature and circumstances of the
supervised release violations; Law’s history and characteristics, including his
repeated noncompliance with the terms of his supervision; the need for
deterrence; and the need to protect the public from further crimes by Law.
Those are permissible considerations in a revocation hearing. See
§ 3553(a)(1), (a)(2)(B), (a)(2)(C); United States v. Sanchez, 900 F.3d 678,
684-85 (5th Cir. 2018). Accordingly, even if the district court considered
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No. 21-30721
retribution as an additional justification for the sentence, there is no
indication that a § 3553(a)(2)(A) factor played a dominant role here, and Law
therefore fails to show the requisite plain (clear or obvious) error. See United
States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015).
The extent of the upward variance — from a guidelines range of eight
to 14 months to a sentence of 24 months — does not constitute an abuse of
discretion; we have routinely upheld larger variances. See, e.g., United States
v. Kippers, 685 F.3d 491, 500-01 (5th Cir. 2012). Law fails to show that his
revocation sentence is plainly unreasonable. See Cano, 981 F.3d at 425.
AFFIRMED.
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