IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2009
No. 08-50346 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALAN WHITELAW
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
Before DAVIS, OWEN, and HAYNES, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant Alan Whitelaw appeals his sentence imposed upon revocation
of his term of supervised release on several grounds that he failed to bring to the
attention of the sentencing court. Finding no plain error, we affirm.
I.
Alan Whitelaw was convicted of theft of money in an amount exceeding
$200,000 in state court and was sentenced to 60 years of imprisonment.
Whitelaw subsequently pleaded guilty to federal bank fraud charges in the
Southern District of Texas. While the same type of fraudulent conduct was the
basis for both of Whitelaw’s convictions, the federal and state convictions
involved different specific conduct, dates, and victims.
No. 08-50346
Although Whitelaw pleaded guilty to the federal charge without a written
plea agreement, the Government made an oral agreement at rearraignment that
it would recommend that Whitelaw’s sentence run concurrently with his state
court sentence. The district court accepted the agreement as a plea agreement
under F ED. R. C RIM. P. 11(c)(1)(C), ruling that Whitelaw would be allowed to
withdraw his guilty plea if it did not order that his sentence run concurrently
with his state court sentence. The district court sentenced Whitelaw to 46
months of imprisonment, the sentence to run concurrently with his state court
sentence, and five years of supervised release.
Whitelaw served only five years on his state court sentence, was released
from prison, and began serving his term of supervised release as required under
his federal sentence on June 10, 2004. Jurisdiction over Whitelaw’s supervised
release was transferred to the Western District of Texas.
In October 2007, Whitelaw’s probation officer filed a petition for an arrest
warrant to arrest Whitelaw for violating the conditions of his supervised release.
After the district court issued the warrant and Whitelaw was arrested, the
Government filed a motion to revoke Whitelaw’s supervised release and an
amended motion to revoke Whitelaw’s supervised release (“MTR”). In the
amended MTR, the Government alleged that Whitelaw had violated the
conditions of his supervised release by: (1) committing the felony offense of theft
of copper wire valued in excess of $1,000 or possession of stolen copper wire
valued in excess of $1,000; (2) making false statements to his probation officer
by denying that he had committed the offense; (3) obstructing justice by
submitting to his probation officer false or forged documents purporting to relate
to his acquisition of copper wire; (4) not timely reporting to his probation officer
his arrests on June 17, 2007, and October 12, 2007; and (5) failing to timely
report to his probation officer changes in his employment.
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No. 08-50346
Whitelaw pleaded not true to the revocation charges. Following an
evidentiary hearing, the district court declined to rule on the charge that
Whitelaw did not timely report his June 17, 2007 arrest to his probation officer,
but found that the remaining charges were true, and revoked Whitelaw’s
supervised release. The district court determined that Whitelaw’s criminal
history category was I and that his highest grade of supervised release violation
was B, making his statutory maximum sentence 36 months of imprisonment and
his guidelines sentence range 4-10 months of imprisonment. Whitelaw
requested a sentence at the low end of the guidelines range. The district court
sentenced Whitelaw to 36 months of imprisonment, and ordered that sentence
run consecutively to any other state or federal sentence. Whitelaw filed a timely
notice of appeal.
Following the revocation of his supervised release, Whitelaw filed a pro se
motion that included a claim that he should be allowed to withdraw his guilty
plea because his sentence upon the revocation of supervised release was not
ordered to run concurrently with any state court sentence he received. The
district court struck the motion because Whitelaw was represented by counsel
and, therefore, not entitled to make pro se filings. In the alternative, the district
court denied the motion on its merits.
II.
Whitelaw did not raise any of the specific claims of procedural error that
he argues in this appeal when he was before the district court for sentencing.
Accordingly, as Whitelaw concedes, this court reviews those claims for plain
error only. See United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th
Cir.), cert. denied, 128 S. Ct. 325 (2007). Whitelaw also acknowledges that his
argument that his challenge to the sufficiency of the district court’s explanation
of the reasons for the sentence imposed does not need to be preserved is
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No. 08-50346
foreclosed. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.),
cert. denied, 129 S. Ct. 625 (2008).
Whitelaw challenged the district court’s ruling that his sentence would run
consecutively to any other sentence only in the pro se motion he filed following
his revocation hearing. That motion, however, was stricken by the district court
because Whitelaw was represented by counsel. Accordingly, Whitelaw did not
properly raise this claim of specific legal error below, and this court reviews it
for plain error only. See Hernandez-Martinez, 485 F.3d at 272-73.
Whitelaw also did not object to the substantive reasonableness of the
sentence below. Whitelaw’s contest of the revocation charges and request for a
sentence at the low end of the guidelines range are insufficient to preserve the
substantive reasonableness of the sentence for review. See United States v.
Peltier, 505 F.3d 389, 390-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008).
Whitelaw maintains that Peltier conflicts with Hernandez-Martinez, and that
Hernandez-Martinez controls under the rule of orderliness because it is the
earlier opinion. This argument is without merit. In Hernandez-Martinez, 485
F.3d at 272 n.1, Hernandez-Martinez raised a claim of specific legal error rather
than an objection to the substantive reasonableness of his sentence. This court
made it clear that it was not adopting the holding from other circuits that an
objection is not necessary to preserve a substantive reasonableness challenge to
a sentence. See id. Accordingly, when this court held that a defendant must
object to a sentence as unreasonable to preserve a substantive reasonableness
challenge in Peltier, 505 F.3d at 391-92, the holding did not conflict with
Hernandez-Martinez. Therefore, Peltier is the controlling precedent, and
Whitelaw’s substantive reasonableness challenge is subject to plain-error review.
Because all of the issues raised by Whitelaw are subject to plain-error
review, we need not determine whether to apply the reasonableness standard of
review or the plainly unreasonable standard of review to challenges to sentences
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No. 08-50346
imposed upon the revocation of supervised release. Under the plain error
standard, Whitelaw must show an error that is clear or obvious and affects his
substantial rights. See Hernandez-Martinez, 485 F.3d at 273. If Whitelaw
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. See id.
III.
Whitelaw argues first that the sentence was unreasonable because the
district court ordered it to run consecutively to any other sentence. He
maintains that this aspect of the sentence was unreasonable because the district
court did not indicate that it knew that it could order the sentence to run
concurrently with other sentences. He additionally asserts that this aspect of
the sentence violated his plea agreement which allowed him to withdraw his
guilty plea if his sentence was ordered to run consecutively to his state court
sentence.
The district court has the discretion to order that a sentence imposed upon
the revocation of supervised release run concurrently with or consecutively to
other sentences. United States v. Gonzalez, 250 F.3d 923, 927-29 (5th Cir. 2001).
The district court did not specifically state that it knew that it could order
Whitelaw’s sentence to run concurrently with other sentences. Nevertheless, the
Government specifically requested that the sentence run consecutively to other
sentences, correctly implying that the district court had the discretion to impose
a concurrent or a consecutive sentence. The district court did not indicate that
it thought that it was without discretion to impose a concurrent sentence. In the
absence of evidence to the contrary, this court assumes that the district court
knows the law and applies it correctly. See United States v. Izaguirre-Losoya,
219 F.3d 437, 440 (5th Cir. 2000). Whitelaw has not shown that the district
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No. 08-50346
court committed error, plain or otherwise, by imposing a consecutive sentence
without knowledge that it could impose a concurrent sentence.
Whitelaw’s original sentence was subject to a verbal plea agreement made
at Whitelaw’s rearraignment. The transcript of the rearraignment does not
appear in the record. The PSR, however, describes the plea agreement as
requiring that Whitelaw’s sentence run concurrently with the state court
sentence Whitelaw was then serving. We see no indication that the plea
agreement applied to any sentence other than for the crime upon which he was
charged. The judgment of conviction provides only that Whitelaw’s sentence of
imprisonment would run concurrently with the state court sentence that
Whitelaw was then serving; it did not impose any restrictions upon possible
sentences that could be imposed if Whitelaw’s later term of supervised release
was revoked. Accordingly, Whitelaw has not shown that the imposition of a
consecutive sentence upon the violation of supervised release violates the terms
of his plea agreement or that the district court committed error, plain or
otherwise, by ordering that his sentence be served consecutively to any other
sentence.
IV.
Whitelaw argues next that the district court committed procedural plain
error by sentencing him without considering the policy statements in Chapter
7 of the Sentencing Guidelines, and without adequately stating the reasons for
his sentence as required by § 3553(c).
Our review of the record indicates that the district court clearly considered
the policy statements in Chapter 7 of the Guidelines. Whitelaw’s criminal
history category was I. The grade of Whitelaw’s most serious supervised release
violation was B. Accordingly, his advisory guidelines sentence range under
Chapter 7 was 4-10 months of imprisonment. The district court correctly
calculated the advisory guidelines sentence range and identified it as the
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No. 08-50346
guidelines sentence range prior to pronouncing sentence. Defense counsel
referred to that range in its argument and the same range was cited to the court
by the government in its MTR and amended MTR. In the MTRs, the
government made arguments for an above range sentence related to the §
3553(a) factors, including the nature and circumstances of Whitelaw’s offense,
his criminal history, the need for punishment to deter criminal conduct and the
need to protect the public. Accordingly, Whitelaw has not shown that the
district court failed to consider the policy statements in Chapter 7 of the
Guidelines or sentencing factors in 18 U.S.C. § 3553(a).
Whitelaw also argues that the district court committed procedural plain
error for failing to give reasons for his above guideline range sentence. Rita v.
United States sets forth the requirements for the statement of reasons required
to support a sentence under various circumstances.
The sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties' arguments and
has a reasoned basis for exercising his own legal decisionmaking
authority. See, e.g., United States v. Taylor, 487 U.S. 326, 336-337,
108 S. Ct. 2413, 101 L. Ed. 2d 297 (1988). Nonetheless, when a judge
decides simply to apply the Guidelines to a particular case, doing so
will not necessarily require lengthy explanation. Circumstances
may well make clear that the judge rests his decision upon the
Commission's own reasoning that the Guidelines sentence is a
proper sentence (in terms of § 3553(a) and other congressional
mandates) in the typical case, and that the judge has found that the
case before him is typical. Unless a party contests the Guidelines
sentence generally under § 3553(a) --that is, argues that the
Guidelines reflect an unsound judgment, or, for example, that they
do not generally treat certain defendant characteristics in the
proper way--or argues for departure, the judge normally need say no
more.
Rita v. United States, 551 U.S. 338, 356-357 (2007). Rita goes on to say that
there are two circumstances in which the sentencing court should say more - (1)
“[w]here the defendant or prosecutor presents nonfrivolous reasons for imposing
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No. 08-50346
a different sentence,” and (2) “[w]here the judge imposes a sentence outside the
Guidelines.” Id.
In this case the district court imposed a sentence of 36 months, more than
three times the high end of the guidelines range of 4 to 10 months. Thus, under
the guidance of Rita, some explanation was required. The record contains no
explicit statement setting forth “the specific reason for the imposition of a
sentence different from that described” in the guideline range. 18 U.S.C. §
3553(c). Under plain error review that applies to this issue, we easily find that
the failure to state reasons for a sentence outside the guidelines range is error
that is clear or obvious. We must next consider whether the error affected
Whitelaw’s substantial rights and, if so, decide whether to exercise our discretion
to correct the error if we also find that the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.
This court has not yet applied plain error review to a district court’s failure
to state reasons for an above guideline sentence. In United States v. Mondragon-
Santiago, 564 F.3d 357 (5th Cir. 2009), this court affirmed the defendant’s
within guideline sentence for unlawful reentry. The defendant argued that the
district court committed procedural error by failing to adequately explain its
reasons for the sentence as required by § 3553(c). In Mondragon-Santiago, even
though the district court imposed a sentence within the guideline range, more
explanation was required under the first circumstance described in Rita because
the defendant raised non-frivolous arguments for a downward departure on
several bases. Because the defendant had not raised the objection to the
sentencing court, plain error review was applied.
This court easily found error that was plain, and examined whether the
error affected the defendant’s substantial rights.
To show that an error affects a defendant's substantial rights, the
defendant must show that it affected the outcome in the district
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No. 08-50346
court: "To meet this standard the proponent of the error must
demonstrate a probability 'sufficient to undermine confidence in the
outcome.'" Id. (quoting United States v. Dominguez Benitez, 542 U.S.
74, 83, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004)); see also United
States v. Olano, 507 U.S. 725, 734-35, 113 S. Ct. 1770, 123 L. Ed. 2d
508 (1993).
Id. at 364. This court rejected the relaxed approach to plain error review taken
by the Second Circuit in In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008)
(“And the required showing of prejudice should be slightly less exacting for
sentencing that it is in the context of trial errors.” (internal quotation marks and
citation omitted)); and by the Second Circuit in United States v. Lewis, 424 F.3d
239, 248 (2d Cir. 2005)(“[I]n the sentencing context there are circumstances that
permit us to relax the otherwise rigorous standards of plain error review to
correct sentencing errors.” (internal quotation marks and citation omitted)).
Instead, consistent with Fifth Circuit precedent, we
applied our traditional standards when reviewing sentences,
emphasizing that "the defendant's burden of establishing prejudice
'should not be too easy.'" Mares, 402 F.3d at 521 (quoting Dominguez
Benitez, 542 U.S. at 82). In Mares, this court . . . approvingly cited
the Eleventh Circuit's summary of Supreme Court precedent,
stating the burden of proof requires
the defendant to show that the error actually did make
a difference: if it is equally plausible that the error
worked in favor of the defense, the defendant loses; if
the effect of the error is uncertain so that we do not
know which, if either, side it helped the defendant
loses.
Id. (quoting United States v. Rodriguez, 398 F.3d 1291, 1300 (11th
Cir. 2005)). . . . We are compelled to follow Mares: to show
substantial prejudice, the defendant must prove that the error
affected the sentencing outcome.
Mondragon-Santiago, 564 F.3d at 364. Applying this standard, this court found
no affect on the defendant’s substantial rights for two reasons: (1) the great
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No. 08-50346
deference owed a sentence within the guideline range and the inference that a
judge sentencing within that range has considered all required factors, and (2)
Mondragon-Santiago failed to show that an explanation would have changed his
sentence. Id. at 365. Because Whitelaw was sentenced above the guidelines
range in this case, the first rationale from Mondragon-Santiago does not apply
and we must consider whether our traditional plain error standard is
appropriately applied in this context.
In cases involving above guidelines sentences, the D.C. Circuit and the
Second Circuit have relaxed the showing required by a defendant to demonstrate
that the error affected the defendant’s substantial rights. These courts reason
that the absence of a statement of reasons affects the appellate court’s ability to
perform a meaningful review of the sentence. In re Sealed Case, 527 F.3d at 193;
Lewis, 424 F.3d at 248-49. Both circuits also conclude that the failure to state
reasons undermines “the public reputation of judicial proceedings” because the
statement of reasons indicates to the public that the sentencing judge has
thoughtfully discharged his responsibilities and demonstrates that the judgment
is not arbitrary. Id. See also United States v. Blackie, 548 F.3d 395 (6th Cir.
2008)(same).
Other circuits have declined to follow that lead. The Tenth Circuit
affirmed a below guidelines sentence in which the government argued
procedural error for failure of the sentencing court to cite reasons for a
downward departure. See United States v. Mendoza, 543 F.3d 1186 (10th Cir.
2008). The Tenth Circuit refused to find that the error affected the government’s
substantial rights because, applying traditional plain error analysis, the
government could not explain how a more detailed reasoning process might have
led the court to select a higher sentence. Id. at 1194. In other words, the
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No. 08-50346
government could not show that the error made a difference in the sentencing
outcome. The court refused to presume prejudice.
Even if we were to accept the conclusion of the Second Circuit that a
sentencing court’s failure to state reasons affects the defendant’s substantial
rights by impairing his ability to appeal and this court’s ability to review the
reasons for his sentence, the facts of this case do not support such a conclusion.
Rather our review of the record reveals the reasons for Whitelaw’s sentence,
even if not explicitly stated by the district court. Whitelaw’s sentence followed
an extensive hearing during which the court heard evidence to support its
decision that Whitelaw had violated the terms of his supervised release on
several bases. When the district court then turned to the issue of sentencing, the
defendant and his counsel argued for a sentence at the low end of the guideline
range. Counsel argued that the prior state and federal charges were factually
related and because of the prior sentencing courts’ failure to recognize that
interrelationship, Whitelaw had served 18 months longer in prison than he
should have. The government countered that the defendant had been treated
leniently before. He served only 5 years of the 60 year sentence imposed on the
state theft charges and the federal sentence which ran concurrently was
subsumed within that term. The government also argued that the charges
against Whitelaw reflected a very aggravated and sophisticated theft that he
tried to conceal from his probation officer, the state parole system and the court.
The government then urged the court to sentence Whitelaw to 36 months in
prison (the statutory maximum) for the five reasons set forth in its motion to
revoke and that the sentence be consecutive to any other sentence. The district
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No. 08-50346
court then granted the government’s motion and sentenced Whitelaw to the
government’s recommended 36 month term of imprisonment.1
1
The MTR listed the following reasons which justify that sentence:
1. Prior leniencies shown the Defendant. For three felony theft
offenses, the Defendant was assessed a total of 60 years in
prison, of which he served about 5. In his instant federal
offense, despite his leadership role in inflicting fraud losses of
almost $200,000, the Defendant was not required to pay any
restitution.
2. Defendant’s return to theft. During his supervised release, the
Defendent perpetrated his crime track record by returning to
theft. Approving an upward departure in a criminal case, our
Court of Appeals had the Defendant in mind when reasoning:
“The recidivist’s relapse into the same criminal behavior
demonstrates his lack of recognition of the gravity of his
original wrong, entails greater culpability for the offense for
which he is currently charged, and suggests an increased
likelihood that the offense will be repeated yet again.” United
States v. DeLuna-Trujillo, 868 F.2d 122, 124-25 (5th Cir.
1989).
3. Defendant’s pattern of criminal deception. During the course
of the Defendant’s supervised release, the Defendant lied to
a state judge through falsified documents and lied to his
probation officer and other officials through bogus documents
relating to his acquisition of copper wire. Such conduct
constitutes multiple felony offenses for which the Defendant
could be prosecuted.
4. Need to provide maximum proteciton from Defendant’s
criminality. By blatantly, audaciously, and repeatedly
disregarding his probation officer’s instructions relating to
employment, the Defendant caused thousands of dollars in
losses to off-duty policy officers. With a well-documented
propensity to commit theft and fraud offenses, unabated by
conditions of supervised release, the Defendant represents a
demonstrable danger to the public, justifying maximum
incarceration. See, e.g. United States v. Roberson, 872 F.2d
597, 606 n.8 (5th Cir. 1989); United States v. Fisher, 868 F.2d
128, 130 (5th Cir. 1989).
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No. 08-50346
We have no trouble concluding that by granting the government’s Motion
to Revoke and sentencing Whitelaw to the term of imprisonment recommended
and supported in that motion, the district court implicitly adopted the
government’s rationale for that sentence as set forth in the motion. These
reasons thoroughly explain Whitelaw’s sentence. The factual basis supporting
them is implicit in the district court’s findings that most of the revocation
charges were true. By reviewing the record of the sentencing proceedings in this
case, we are able to conduct a meaningful appellate review. Accordingly, the
district court’s failure to state these reasons on the record has not prejudiced
Whitelaw.
Neither does the district court’s error “seriously affect the fairness,
integrity, or public reputation of judicial proceedings.” We see no indication the
district court considered any impermissible factor when sentencing Whitelaw.
The government’s arguments for an above range sentence related to several
factors listed in § 3553(a), including the nature and circumstances of Whitelaw’s
offense, his criminal history, the need for punishment to deter criminal conduct
and the need to protect the public. Also, there is no indication that the district
court would impose a lighter sentence on remand and the record was more than
sufficient for us to assess the reasons and reasonableness of Whitelaw’s
5. Combinations of reasons, proportionality. The 36 months in
prison we propose: (1) accords due respect for the law and
conditions of supervised release; (2) affords the Defendant an
opportunity for vocational and other programming within the
Bureau of Prisons; and (3) most important, extends the public
the maximum protection it deserves from this theft and fraud
recidivist without further encumbering limited probation-
office resources.
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No. 08-50346
sentence. See United States v. Vigil, 2009 U.S. App. LEXIS 14385 (10th Cir.
June 30, 2009)(applying this record review approach to a guidelines sentence).
Although the district court plainly erred by failing to state the reasons for
imposing an above guideline sentence, Whitelaw has not met his burden of
establishing that the error affected his substantial rights or that the error
affected the public reputation of judicial proceedings, either here or in the
district court.
V.
Whitelaw argues finally that the sentence was substantively unreasonable
because it was far greater than the advisory guidelines sentence range and was
outside of the range of reasonable sentences. Whitelaw’s conviction was for bank
fraud, which carries a maximum sentence of 30 years of imprisonment and is a
Class B felony. See R. 1, 3; 18 U.S.C. §§ 1344, 3559(a)(2). Based on these facts,
the statutory maximum sentence on revocation was 36 months of imprisonment
and his guideline range was 4 to 10 months of imprisonment. Whitelaw’s
sentence of 36 months did not exceed the statutory maximum. See 18 U.S.C.
§ 3583(e)(3). Accordingly, the sentence imposed by the district court did not
constitute plain error. See United States v. Jones, 484 F.3d 783, 792 (5th Cir.
2007) (holding statutory maximum revocation sentence not to be plain error);
United States v. Jones, 182 F. App’x 343, 344 (5th Cir. 2006) (noting that this
court has “routinely upheld release revocation sentences in excess of the advisory
range but within the statutory maximum.”); United States v. Smith, 253 F. App’x
346, 348 (5th Cir. 2007) (holding statutory maximum revocation sentence not to
be plain error).
VI.
For the foregoing reasons, Whitelaw’s sentence is affirmed.
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No. 08-50346
AFFIRMED.
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