Case: 16-30905 Document: 00513900884 Page: 1 Date Filed: 03/07/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30905 FILED
Summary Calendar March 7, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SHAMICHAEL D. BRIGHT, also known as Big Mike, also known as Mike Dog,
Defendant-Appellant
Cons. w/ No. 16-30911
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SHAMICHAEL D. BRIGHT,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 5:15-CR-233-2
USDC No. 5:10-CR-92-1
Case: 16-30905 Document: 00513900884 Page: 2 Date Filed: 03/07/2017
No. 16-30905
c/w No. 16-30911
Before KING, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Shamichael D. Bright timely appeals from the above-guidelines sentence
imposed following the revocation of his supervised release and from the within-
guidelines sentence imposed following his conviction for conspiracy to
distribute and possess with intent to distribute a mixture containing cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), 846. These appeals have been
consolidated for our review. Bright contends that the district court’s revocation
sentence was unreasonable because (1) the guidelines range specifically
accounts for violations of supervised release like the ones he committed and (2)
the court did not clearly state its application of the 18 U.S.C. § 3553(a)
sentencing factors. 1
Because Bright’s arguments were not preserved in the district court,
they are subject to plain error review. United States v. Whitelaw, 580 F.3d 256,
259-60 (5th Cir. 2009). We first examine whether the district court committed
a plain procedural error in its application of the § 3553(a) factors. See Gall v.
United States, 552 U.S. 38, 51 (2007). A district court fashioning a revocation
sentence may not consider the factors set forth in § 3553(a)(2)(A). United
States v. Miller, 634 F.3d 841, 843-44 (5th Cir. 2011). Further, a revocation
sentence sanctions a defendant for violating supervised release, not for the
conduct underlying the initial conviction. Id. at 843; see also United States v.
Rivera, 784 F.3d 1012, 1017 (5th Cir.), denying reh’g, 797 F.3d 307, 308 (5th
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
1Because Bright contests only his revocation sentence in this consolidated appeal, he
has waived any argument as to his sentence for his controlled substance convictions. See
Hernandez v. Thaler, 630 F.3d 420, 426 n.24 (5th Cir. 2011); see also United States v. Luviano,
604 F. App’x 347, 348 (5th Cir. 2015).
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Case: 16-30905 Document: 00513900884 Page: 3 Date Filed: 03/07/2017
No. 16-30905
c/w No. 16-30911
Cir. 2015) (emphasizing distinction between punishment for the offense of
conviction and sanctioning the violations resulting in revocation of supervised
release). We have held that a sentencing error occurs “when an impermissible
consideration is a dominant factor in the court’s revocation sentence, but not
when it is merely a secondary concern or an additional justification for the
sentence.” Rivera, 784 F.3d at 1017.
No procedural error is present here. At the revocation hearing, the
district court never cited to, or relied on, any prohibited § 3553(a)(2)(A) factor.
Rather, the district court’s language at sentencing reflected the court’s focus
on sanctioning the nature and circumstances of Bright’s failure to comply with
the terms of his supervised release, instead of punishing him for the initial
offense that led to the term of supervised release. See Rivera, 797 F.3d at 308;
Miller, 634 F.3d at 843-44.
Bright’s substantive reasonableness challenge also lacks merit. He
concedes that the district court considered § 3553(a) factors in its revocation
sentence, and his argument essentially amounts to a disagreement with the
district court’s balancing of the sentencing factors, which this court will not
reweigh. See Gall, 552 U.S. at 51. Bright has not established that the district
court failed to consider any significant factors, gave undue weight to any
improper factors, or clearly erred in balancing the sentencing factors. United
States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). Thus, he has not shown
that the district court committed any error, plain or otherwise. See Whitelaw,
580 F.3d at 265.
AFFIRMED.
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