United States v. Elamin

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 14, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 03-30191
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

YAHYA RASHIN ELAMIN, also known as Yahya
Abdul Lateef,

Defendant-Appellant.

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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CR-385-B
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Before BARKSDALE, EMILO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Yahya Rashin Elamin appeals the sentence imposed by the

district court following the revocation of his supervised release.

Elamin argues that the district court’s 36-month sentence was

plainly unreasonable because he was in custody “virtually the

entire time that he was faulted for not reporting.”

*
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that this opinion should not be published and is not precedent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.
 No. 03-30191
-2-

The policy statements applicable to revocation of supervised

release are advisory only; therefore, this court will uphold a

sentence following revocation of supervised release unless it is

“in violation of law or is plainly unreasonable.” United States v.

Mathena, 23 F.3d 87, 93-94 (5th Cir. 1994). In determining the

sentence to be imposed, a district court must consider the factors

contained in 18 U.S.C. § 3553(a). United States v. Gonzalez, 250

F.3d 923, 929 & n.9 (5th Cir. 2001). We reject Elamin’s assertion

that his failure to report is the only relevant consideration in

reviewing the district court’s sentence because a review of the

entire record suggests that the district court did not limit itself

to the failure to report in determining Elamin’s sentence.

It was not unreasonable for the district court to reject

Elamin’s excuses for failing to report. In addition, the record

before this court indicates that Elamin continued to engage in

criminal conduct during the brief periods he was not in custody.

The district court considered such, as well as the other relevant

factors listed in 18 U.S.C. § 3553(a), noting Elamin’s extensive

criminal history and expressing doubts as to whether Elamin would

benefit from supervision. Because the sentence imposed in this

case was not plainly unreasonable, the judgment of the district

court is AFFIRMED.