Case: 12-60733 Document: 00512261444 Page: 1 Date Filed: 06/04/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 4, 2013
No. 12-60733
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID HAROLD DUBOSE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:12-CR-105-1
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
David Harold Dubose argues his 24-month prison sentence imposed upon
the revocation of his supervised release, which is above the guidelines policy
statement range of 4 to 10 months but at the statutory maximum of 24 months,
is procedurally and substantially unreasonable. He does not challenge the newly
imposed 20-year term of supervised release.
Dubose asserts “[t]he district court’s failure to provide any reason as to
why it ordered a significantly above-Guidelines sentence in this case renders the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-60733 Document: 00512261444 Page: 2 Date Filed: 06/04/2013
No. 12-60733
sentence plainly unreasonable.” Because Dubose did not object below to the
district court’s failure to give reasons for its above-guidelines sentence, we
review for plain error only. See United States v. Whitelaw, 580 F.3d 256, 259-60
(5th Cir. 2009). “Although the district court clearly erred by failing to state the
reasons for imposing an above guideline sentence, [Dubose] 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.” Id. at 265.
He also asserts that, in light of the recommended guidelines range, the
sentence imposed is unreasonably long. Dubose’s objection to the imposition of
a nonguidelines sentence did not preserve a challenge to the substantive
reasonableness of the sentence and, thus, we review for plain error. See
Whitelaw, 580 F.3d at 259-60. The guidelines range of 4 to 10 months was based
solely on the highest grade violation and Dubose’s underlying criminal history
category. It did not take into account the number, nature, or timing of the
violations of the conditions of his release. Moreover, we have routinely upheld
sentences following revocation that, as here, exceed the recommended guidelines
range but are within the statutory maximum. See e.g., United States v. Jones,
484 F.3d 783, 792 (5th Cir. 2007). Dubose’s sentence to the 24-month statutory
maximum does not constitute error, much less plain error. See Whitelaw, 580
F.3d at 265.
AFFIRMED.
2