Case: 22-20347 Document: 00516584297 Page: 1 Date Filed: 12/20/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 20, 2022
No. 22-20347 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Gerrett Winn,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-691-8
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam:*
Gerrett Winn appeals the 24-month above-guidelines sentence
imposed following the revocation of his supervised release, which was part of
his sentence for being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). He contends that the revocation sentence was based
upon improper factors, including the seriousness of charges pending against
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20347 Document: 00516584297 Page: 2 Date Filed: 12/20/2022
No. 22-20347
him in state court which had been dropped from the revocation proceedings
and on the district court’s desire to impose just punishment after his prior
lenient sentence. Winn also argues that the district court failed to give
sufficient weight to the appropriate guidelines range, urging that the court
erred in imposing a sentence applicable to a more serious grade B violation of
supervised release to his less serious grade C violation.
To the extent that Winn argues that his sentence was substantively
unreasonable because the district court gave significant weight to an
improper sentencing factor, our review is for plain error because he did not
raise that argument before the district court. See United States v. Cano,
981 F.3d 422, 425 (5th Cir. 2020). He otherwise properly preserved
a challenge to the substantive reasonableness of his sentence. Id. Sentences
imposed upon revocation of supervised release are reviewed under the
plainly unreasonable standard when an issue has been preserved for appeal.
Id.
Excluded from consideration when determining a revocation sentence
are those factors listed in § 3553(a)(2)(A), which are the need for the
sentence imposed “to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense.” See
18 U.S.C. § 3553(a)(2)(A); United States v. Miller, 634 F.3d 841, 844 (5th Cir.
2011). The district court specifically stated that it did not consider the
dropped charges, proceeding only on the charged supervised release violation
to which Winn pleaded true. The court did not expressly reference the
§ 3553(a)(2)(A) prohibited factors, and, even assuming, arguendo, that it did
implicitly consider those factors, it also considered Winn’s significant
criminal history, the substantial leniency previously shown him, and his
almost immediate violation of the terms of his release, all permissible
considerations in a revocation hearing. See § 3553(a)(1); United States
v. Sanchez, 900 F.3d 678, 684-85 (5th Cir. 2018). Accordingly, even if the
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district court considered the need for just punishment and to promote
respect for the law as an additional justification for the sentence, there is no
indication that a § 3553(a)(2)(A) factor played a dominant role here, and
Winn therefore fails to show the requisite plain (clear or obvious) error. See
United States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015); see also Puckett
v. United States, 556 U.S. 129, 135 (2009).
The extent of the upward variance — from a guidelines range of five
to 11 months to a sentence of 24 months — does not constitute an abuse of
discretion; we have routinely upheld larger variances. See, e.g., United States
v. Kippers, 685 F.3d 491, 500-01 (5th Cir. 2012). Winn fails to show that his
revocation sentence is plainly unreasonable. See Cano, 981 F.3d at 425.
Accordingly, the district court’s judgment is AFFIRMED.
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