United States v. Lacey Horn , 690 F. App'x 278 ( 2017 )

Case: 16-60703 Document: 00514026970 Page: 1 Date Filed: 06/09/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60703 FILED
Summary Calendar June 9, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
LACEY KRISTINA HORN,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:13-CR-149-1
Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Lacey Kristina Horn appeals her above-Guidelines sentence of 24
months’ imprisonment, imposed for the third revocation of her supervised
release. The prior supervised-release periods were imposed in accordance with
18 U.S.C. § 3583, following Horn’s 18-month imprisonment imposed for her
guilty-plea sentence for burglary at a place within a special maritime and
territorial jurisdiction of the United States, in violation of 18 U.S.C. § 7(3).
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-60703 Document: 00514026970 Page: 2 Date Filed: 06/09/2017
No. 16-60703
Horn contends the district court’s most recent revocation-sentence involved
procedural error and was substantively unreasonable.
Because Horn did not raise the specific claim of procedural error in
district court, review is only for plain error. E.g., United States v. Whitelaw,
580 F.3d 256, 259 (5th Cir. 2009). Under that standard, Horn must show a
forfeited plain (clear or obvious) error that affected her substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If she does so, we have the
discretion to correct the reversible plain error, but should do so only if it
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.
A district court fashioning a revocation sentence under 18 U.S.C.
§ 3583(e) may not consider the factors set forth in 18 U.S.C. § 3553(a)(2)(A).
United States v. Miller, 634 F.3d 841, 843–44 (5th Cir. 2011). Under
§ 3583(g)(1), however, because Horn violated her release by possession of a
controlled substance, the court was required to revoke the term of supervised
release; and, when revoking a term of supervised release under § 3583(g), the
court may consider the § 3553(a) factors in determining the length of sentence.
See United States v. Illies, 805 F.3d 607, 609 (5th Cir. 2015). Therefore,
regardless whether the court relied on a § 3553(a)(2)(A) factor in imposing the
revocation sentence, the court did not clearly or obviously err in any manner
affecting Horn’s substantial rights. See id.; see also United States v. Rivera,
784 F.3d 1012, 1017 (5th Cir. 2015); Whitelaw, 580 F.3d at 259–61.
Additionally, although Horn claims the court “predetermined” her
sentence, she failed to adequately brief this portion of her procedural
challenge. Her predetermination claim is, therefore, abandoned. See Fed. R.
App. P. 28(a)(8)(A); United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir.
2010).
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Case: 16-60703 Document: 00514026970 Page: 3 Date Filed: 06/09/2017
No. 16-60703
Given Horn’s objection at sentencing to the substantive reasonableness
of her sentence, we review the challenge under the “plainly unreasonable”
standard. See Miller, 634 F.3d at 843. Horn’s contentions on substantive
reasonableness, however, amount to disagreement with the court’s assessment
of the sentencing factors, which this court will not re-weigh. See Gall v. United
States, 552 U.S. 38, 51 (2007). The sentencing factors relied on by the court do
not render Horn’s sentence substantively unreasonable. Id.; Illies, 805 F.3d at
609–10; United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013).
AFFIRMED.
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