Case: 22-50992 Document: 00516828181 Page: 1 Date Filed: 07/20/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50992
Summary Calendar FILED
____________ July 20, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Kimberly Sue Pierce,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:13-CR-348-1
______________________________
Before Jolly, Smith, and Duncan, Circuit Judges.
Per Curiam: *
Kimberly Sue Pierce appeals the 36-month, above-guidelines sentence
imposed following the revocation of her supervised release. She contends
that her sentence is procedurally and substantively unreasonable for three
reasons, and we address each one in turn.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50992
Sentences imposed upon revocation of supervised release are
reviewed in a two-step process. United States v. Foley, 946 F.3d 681, 685 (5th
Cir. 2020). We must first ensure the district court committed no significant
procedural error and then consider the substantive reasonableness of the
sentence. Id. Even if we determine that a revocation sentence was
unreasonable, we may only vacate if the error is “obvious under existing law,
so that the sentence is not just unreasonable but is plainly unreasonable.” Id.
(internal quotation marks and citation omitted). Pierce contends that the
plainly unreasonable standard is incorrect and that revocation sentences
should be reviewed under the standard of reasonableness set forth in United
States v. Booker, 543 U.S. 220 (2005). She acknowledges that this argument
is foreclosed but seeks to preserve the issue for further review.
Pierce did not object to the reasonableness of her sentence on two of
the three grounds now presented on appeal. We review her unpreserved
arguments for plain error and her preserved argument for abuse of discretion.
See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009);
United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). To establish plain
error, Pierce must show that the district court committed a clear or obvious
error that affected her substantial rights. See Puckett v. United States, 556 U.S.
129, 135 (2009). Even if she makes this showing, we will correct an error only
if it seriously affected the fairness, integrity, or public reputation of judicial
proceedings. See id.
First, Pierce presents the unpreserved claim that the district court
failed to adequately explain the reasons for the above-guidelines sentence.
The district court is required to articulate the reasons for imposing an above-
guidelines sentence upon revocation of supervised release. United States v.
Kippers, 685 F.3d 491, 498 (5th Cir. 2012). The explanation must be
sufficient to allow for meaningful review; however, there is no required
language, and implicit consideration of the sentencing factors is generally
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sufficient. Id. Here, before imposing the sentence, the district court
expressed its evaluation of the factual circumstances and adequately
articulated the 18 U.S.C. § 3553(a) sentencing factors upon which it relied.
Accordingly, Pierce is unable to demonstrate the requisite plain error. See
id.; see also Puckett, 556 U.S. at 135.
Second, for the first time on appeal, Pierce argues that the district
court relied on prohibited sentencing factors, namely, punishment for the
underlying criminal conduct resulting in the violation of supervision and her
rehabilitative needs. Her argument is unavailing. Although the district court
initially expressed concern that Pierce inherently possessed drugs to use
them, it later removed the alleged possession violation from its calculation of
the guidelines range and disregarded such criminal conduct from its
sentencing determination. The record instead demonstrates that the court’s
goal was to sanction Pierce’s “breach of trust” due to her repeated
noncompliance with the conditions of her supervised release. See United
States v. Cano, 981 F.3d 422, 426 (5th Cir. 2020). Next, not only was her
need for rehabilitation entirely absent from the court’s pronouncement, but
so was Pierce’s drug use. Accordingly, Pierce is unable to show that either
of these prohibited factors was considered, let alone dominant. See United
States v. Walker, 742 F.3d 614, 617 (5th Cir. 2014). Thus, there was no plain
error. See id.; see also Puckett, 556 U.S. at 135.
Finally, Pierce has failed to show that her sentence was substantively
unreasonable. There is no indication in the record that an important factor
was overlooked, that an improper factor was given significant weight, or that
the imposed sentence suggests a clear error of judgment in the court’s
balancing of the factors. See Foley, 946 F.3d at 685. We will not reweigh the
sentencing factors and substitute our own judgment for that of the district
court, as Pierce requests. See United States v. Hernandez, 876 F.3d 161, 167
(5th Cir. 2017). To the extent she argues that her sentence is plainly
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unreasonable because it is nearly twice that of the top of the advisory range,
such a variance does not warrant a different conclusion. We have “routinely
affirmed revocation sentences exceeding the advisory range, even where the
sentence equals the statutory maximum.” Warren, 720 F.3d at 332 (internal
quotation marks and citation omitted); see Whitelaw, 580 F.3d at 265.
AFFIRMED.
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United States v. Pierce
Combined Opinion