Case: 11-11069 Document: 00511926952 Page: 1 Date Filed: 07/19/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 19, 2012
No. 11-11069
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERT DAVID MIELNICKI, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-51-1
Before DAVIS, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Robert David Mielnicki, Jr., appeals the 48-month sentence imposed upon
revocation of his supervised release. The district court imposed sentences of
24-months of imprisonment on each of two counts and ordered that the sentences
run consecutively to each other and to the 15-year sentence imposed by a Texas
state court for the robbery offense that resulted in the revocation. On appeal,
Mielnicki challenges only the substantive reasonableness of his revocation
sentence.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-11069 Document: 00511926952 Page: 2 Date Filed: 07/19/2012
No. 11-11069
Mielnicki argues that revocation sentences should be reviewed for
“reasonableness” in light of United States v. Gall, 552 U.S. 38 (2007) and United
States v. Booker, 543 U.S. 220 (2005), but he raises the argument to preserve it
for further review. As he acknowledges, we review revocation sentences under
18 U.S.C. § 3742(a)(4)’s “plainly unreasonable” standard, United States v. Miller,
634 F.3d 841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011).
Although Mielnicki asserts that his challenge to the substantive
reasonableness of his sentence has been preserved, he lodged only a general
objection to the substantive reasonableness of his sentence. He did not assert
that his sentence was substantively unreasonable on the grounds he now raises
on appeal. Accordingly, our review is limited to plain error. See United States
v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009).
As for Mielnicki’s argument that the district court focused upon an
improper factor, the Texas robbery, in sentencing him, we find the argument is
not supported by the record. Further, even though the district court noted
Mielnicki’s criminal history before imposing sentence, the district court was not
prohibited from considering “the history and characteristics of the defendant.”
18 U.S.C. § 3553(a)(1). Moreover, the district court clearly stated that the
sentence addressed “the factors [it] should consider in a revocation context
under” § 3553(a). Accordingly, Mielnicki has failed to show that the district
court considered an improper factor in imposing the revocation sentence. See
§ 3553(a)(2)(A); Miller, 634 F.3d at 844.
He also argues that in ordering that the revocation sentences run
consecutively to each other as well as to the 15-year sentence imposed by the
state court, the district court imposed an excessive sentence and disregarded the
state court’s intention that the state sentence run concurrently with the
revocation sentence. We disagree. The district court was “within its authority
to impose consecutive terms of imprisonment following the revocation of . . .
concurrent terms of supervised release.” United States v. Gonzalez, 250 F.3d
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Case: 11-11069 Document: 00511926952 Page: 3 Date Filed: 07/19/2012
No. 11-11069
923, 929 (5th Cir. 2001). Further, the district court exercised its discretion to
order that the revocation sentence be served consecutively to the sentence
imposed by the state court. See 18 U.S.C. § 3584; U.S.S.G. § 7B1.3(f). The
district court’s decision was authorized by statute and preferred under the
Guidelines, and it did not constitute plain error.
Finally, although the 48-month sentence is greater than the recommended
sentencing range, it does not exceed the statutory maximum term of
imprisonment allowed upon revocation. See § 3583(e)(3). Accordingly, the
sentence is not plainly erroneous. See United States v. Whitelaw, 580 F.3d 256,
265 (5th Cir. 2009).
The judgment of the district court is AFFIRMED.
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