Case: 11-60777 Document: 00512013597 Page: 1 Date Filed: 10/09/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 9, 2012
No. 11-60777
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ERWIN BERNARD TAYLOR,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:09-CR-86-1
Before CLEMENT, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Erwin Bernard Taylor appeals the 60-month sentence imposed upon his
revocation of probation for his conviction of being an unlawful user of a
controlled substance in knowing possession of a firearm. Taylor argues that his
sentence is unreasonable because the district court’s selection of sentence was
based upon an unadjudicated state felony; Taylor asserts that the district court
violated the prohibition against considering a defendant’s bare arrest record as
a basis to impose a specific sentence. He also argues that the district court failed
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-60777
to provide adequate reasons for the sentence and that the extent of deviation
from the recommended guidelines range was excessive.
Taylor did not raise any of his appellate arguments in the district court.
Thus, review is limited to plain error. See Puckett v. United States, 556 U.S. 129,
135 (2009); United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010) (applying
plain error in the revocation context). To show plain error, Taylor must show a
forfeited error that is clear or obvious and that affects his substantial rights. See
Puckett, 556 U.S. at 135. If he makes such a showing, we have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
We have held that a district court may not consider a defendant’s prior
arrests when imposing a sentence unless sufficient evidence corroborates the
reliability of the arrests. United States v. Johnson, 648 F.3d 273, 276-77 (5th
Cir. 2011). We emphasized that this requirement “comports with the due
process requirement that sentencing facts must be established by a
preponderance of the evidence.” Id. at 278 (citations omitted). In the context of
a revocation of supervised release, a district court must find, by a preponderance
of the evidence, that the defendant violated a condition of release. United States
v. Minnitt, 617 F.3d 327, 332 (5th Cir. 2010) (citation omitted). At sentencing,
Taylor (1) admitted that he had used illegal drugs, (2) admitted that he failed to
notify his probation officer within 72 hours of contact with law enforcement, and
(3) conceded that there was a sufficient factual basis to revoke his probation on
the basis that he committed an unadjudicated state felony. Moreover, Taylor
agreed that these concessions established the violations of supervised release by
a preponderance of the evidence. Accordingly, the district court properly
considered Taylor’s unadjudicated state felony because Taylor’s concession
corroborated its reliability.
Taylor’s contention that his sentence is unreasonable because the district
court did not provide sufficient reasons for the sentence is also unavailing. The
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No. 11-60777
record shows that the district court considered the Chapter 7 policy statements,
implicitly considered relevant sentencing factors under 18 U.S.C. § 3553(a)
(e.g., the nature and circumstances of Taylor’s probation violations, his personal
history and characteristics, and the need to afford adequate deterrence), and
articulated a general basis for its decision to impose a sentence above the
recommended guidelines range: Taylor’s violation of the trust placed in him by
the district court, which granted him leniency at the initial sentencing.
Although the district court committed clear or obvious error by failing to provide
adequate reasons for the specific sentence that it imposed, we find more than
enough basis for the 60-month sentence on the face of this record. Given that his
sentence, while above the guidelines range, is within the statutory maximum for
his original offense, and that the district court implicitly considered relevant
sentencing factors and generally explained its upward deviation, Taylor has not
shown a reasonable probability that, but for the district court’s failure to explain
its sentencing decision, he would have received a lesser sentence. Thus, he has
not shown that the error affected his substantial rights. United States v.
Whitelaw, 580 F.3d 259-60, 261-64 (5th Cir. 2009); see also United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
Finally, the extent to which the district court deviated from the advisory
guidelines range was not erroneous. While Taylor’s 60-month sentence exceeded
the recommended guidelines range of 12 to 18 months of imprisonment, it was
within the 10-year statutory maximum for his original offense of conviction,
which the district court was authorized to impose. See 18 U.S.C. §§ 922(g)(3),
924(a)(2), 3565(a); United States v. Pena, 125 F.3d 285, 287 (5th Cir. 1997). This
court has routinely upheld sentences following revocation that, as here, exceed
the guidelines range but are within the statutory maximum. See Whitelaw, 580
F.3d at 265. Thus, Taylor has not shown plain error as to this issue.
Accordingly, the judgment of the district court is AFFIRMED.
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