IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 20, 2009
No. 08-61041
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
WILLIE RUSSELL
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:08-CR-102-1
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Willie Russell appeals the sixty-month statutory maximum sentence
imposed by the district court following the revocation of his supervised release.
Russell contends that the sixty-month sentence is unreasonable both
procedurally and substantively.
Russell argues for the first time on appeal that the sentence is
procedurally unreasonable because the district court failed to adequately explain
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-61041
its reasons for the sentence. Accordingly, we review that issue for plain error.
See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.), cert. denied,
129 S. Ct. 625 (2008). To establish plain error, the appellant must show a
forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). An error affects an
appellant’s substantial rights if the error affected the outcome in the district
court. United States v. Mondragon-Santiago, 564 F.3d 357, 364 (5th Cir. 2009).
If the appellant makes such a showing, this court has the discretion to correct
the error, but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Puckett, 129 S. Ct. at 1429; see also United
States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962
(2009).
Under 18 U.S.C. § 3553(c), when a district court departs outside the
recommended range of the Sentencing Guidelines or policy statements, it must
state in open court and in its written order of judgment and commitment the
reasons for that particular sentence. § 3553(c). Here, the district court gave a
lengthy oral explanation for its sentence on the record that was more than
adequate to explain its reasoning for assessing a sentence recommended by the
applicable policy statement. See U.S. S ENTENCING G UIDELINES M ANUAL
§ 7B1.4(a), p.s. However, the district court’s written order of judgment and
commitment did not articulate the court’s reasons for assessing a sentence above
the range suggested by the applicable policy statement. This failure arguably
constitutes an obvious error under §3553(c)(2).
Nonetheless, we conclude that the error did not affect Russell’s substantive
rights. The lack of a written explanation would not mandate a resentencing.
“[T]he remedy [ ] would be not a vacating of the sentence, but a remand for
correction of the written judgment. The clarity and correctness of the court’s
reasoning supporting departure leave no room to require resentencing.” United
States v. Zuniga-Peralta, 442 F.3d 345, 349 n.3 (5th Cir. 2006). Given the
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detailed explanation already given, the lack of a written statement of reasons did
not affect Russell’s substantial rights because it could not affect the outcome of
the case or our ability to review the district court’s decision. Moreover, the
district court’s oral explanation of reasons sufficiently served § 3553(c)(2)’s
purpose – “to inform the parties of the reasons for a particular sentence outside
of the guidelines range, to aid the reviewing court in determining the
appropriateness of any guidelines departure . . . , and to assist the Sentencing
Commission in collecting sentencing data and in maintaining a comprehensive
database on all federal sentences.” Zuniga-Peralta, 442 F.3d at 348 (quoting
United States v. Paz, 411 F.3d 906, 911 (8th Cir. 2005)). Accordingly, the district
court’s failure to articulate in writing its reasons for this particular sentence
does not warrant reversal.
Turning to Russell’s substantive reasonableness challenge, any error also
was not preserved. Russell contends that his attorney’s argument about the
district court’s consideration of certain hearsay statements constitutes an
objection to the reasonableness of the sentence. It does not. However, the
standard of review is not determinative here because the sentence passes muster
under any standard. See Puckett, 129 S. Ct. at 1429; United States v. Hinson,
429 F.3d 114, 120 (5th Cir. 2005).
In imposing a sentence upon the revocation of supervised release, a district
court may impose any sentence that falls within the maximum term of
imprisonment allowed by statute. See 18 U.S.C. § 3583(e)(3). The district court
is to consider the factors set forth in § 3553(a) and the advisory policy
statements found in Chapter Seven of the Sentencing Guidelines. United States
v. Mathena, 23 F.3d 87, 90 (5th Cir. 1994).
Although Russell’s sixty-month sentence exceeds the range suggested by
the policy statement, it does not exceed the statutory maximum term of
imprisonment. See 18 U.S.C. §§ 3559(a)(1), 3583(e)(3); U.S. S ENTENCING
G UIDELINES M ANUAL § 7B1.4(a), p.s. We find no error in the district court’s
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consideration of the § 3553 factors and its application of the factors to the facts
of Russell’s case. Russell’s sentence is neither unreasonable nor plainly
unreasonable, and he has not demonstrated plain error. See Hinson, 429 F.3d
at 120 (5th Cir. 2005).
Accordingly, the judgment of the district court is AFFIRMED.
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