IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 28, 2009
No. 08-40118
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WILLIAM HENRY HARRISON, also known as Wayne Green,
Defendant-Appellant
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 6:99-CR-2-1
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
William Henry Harrison appeals the sentence imposed by the district
court on remand for resentencing following United States v. Booker, 543 U. S.
220 (2005). Harrison argues that Judge Charles W. Pickering, who served on
the panel of this court that considered his initial appeal, was not properly
appointed by the President because the Senate was in session when the
President made the recess appointment. United States v. Harrison, 108 F. App’x
987, 990 (5th Cir. 2004), vacated, 545 U.S. 1137 (2005). Harrison contends that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-40118
Judge Pickering’s recess appointment did not occur during a recess, the original
panel of this court thus was not lawfully constituted, and the subsequent
quorum panel lacked the authority to remand for resentencing. Judge Pickering
received a recess appointment to this court on January 16, 2004. Ratliff v.
Stewart, 508 F.3d 225, 228 n.2 (5th Cir. 2007). Contrary to Harrison’s argument
on appeal, the Senate was in recess on January 16, 2004, when the President
appointed Judge Pickering. See 149 Cong. Rec. S16214-01, 2003 WL 22900757
(daily ed. Dec. 9, 2003).
Harrison argues that this court otherwise lacked the authority to remand
the case to the district court for resentencing, relying on his challenge to the
jury’s verdict as to the issue of drug quantity, an issue he concedes he previously
raised in this court. He contends that “he had already served much more time
than the Constitution’s Fifth and Sixth Amendment’s, and the federal law as
interpreted by the Supreme Court, permitted.” He further argues that the
resentencing violated the Double Jeopardy Clause.
This court’s remanding opinion held that to the extent that Harrison’s
supplemental brief challenged the sufficiency of the indictment, the sufficiency
of the evidence, and the jury’s verdict, the issues were beyond the scope of the
Booker remand. United States v. Harrison, 237 F. App’x 911, 912 (5th Cir. 2007).
This court found meritless Harrison’s argument that resentencing violated the
Double Jeopardy Clause. Harrison, 237 F. App’x at 913. Harrison in essence
asks this court to reexamine in this appeal issues previously addressed by this
court in its remanding opinion. Harrison’s arguments are barred by the law of
the case doctrine. See Fuhrman v. Dretke, 442 F.3d 893, 896 (5th Cir. 2006).
Harrison argues that the district court failed to give adequate reasons for
the sentence imposed on resentencing. Because Harrison raises the argument
regarding the district court’s explanation of sentence for the first time on appeal,
the argument is reviewed for plain error. See United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009), petition for cert. filed, (June 24,
2
No. 08-40118
2009) (08-11099). To show plain error, Harrison must show a forfeited error that
is clear or obvious and that affects his substantial rights. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has
the discretion to correct the error but will do so only if the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id.
At resentencing, after considering Harrison’s arguments and those of the
Government, the district court stated that it had considered the parties’ filings
and arguments, the advisory Guidelines, and 18 U.S.C. § 3553(a). The district
court stated that it saw no reason to impose a sentence outside of the advisory
guidelines range and imposed the 132-month concurrent terms of imprisonment.
The court added that it found that the sentence at this level in the guidelines
range adequately accounted for the totality of Harrison’s conduct “with respect
to this offense while meeting the sentencing objectives of punishment and
deterrence.” The district court’s explanation of sentence, while not lengthy,
adequately explained the sentence “to allow for meaningful appellate review and
to promote the perception of fair sentencing.” Gall v. United States, 128 S. Ct.
586, 597 (2007).
Harrison argues that the district court’s imposition of a term of supervised
release violated the Double Jeopardy Clause. Sentences imposed following the
revocation of supervised release or probation are not “punishment” but rather
are part of the penalty for the original conviction. Johnson v. United States, 529
U.S. 694, 700 (2000); United States v. DiFrancesco, 449 U.S. 117, 137 (1980).
AFFIRMED.
3