United States v. James Byrd ( 2015 )

Case: 14-10660 Document: 00512988264 Page: 1 Date Filed: 03/31/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-10660
Fifth Circuit
FILED
Summary Calendar March 31, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
JAMES LEMARC BYRD, also known as Mark Byrd,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:04-CR-22-1
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
James LeMarc Byrd appeals the 24-month sentence of imprisonment
imposed following the revocation of his supervised release. He contends that
the sentence, which exceeds the range of imprisonment set forth in the
nonbinding policy statements found in U.S.S.G. § 7B1.4, but does not exceed
the statutory maximum, is unreasonable. He argues that the district court
failed to sufficiently articulate its reasons for sentencing him substantially
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10660 Document: 00512988264 Page: 2 Date Filed: 03/31/2015
No. 14-10660
above the guidelines range and that the district court gave significant weight
to an irrelevant or improper factor when it stated that a 24-month sentence
was necessary to protect the public. Byrd asserts that the public was not
jeopardized by his supervised release violations or by his offense of being a
felon in possession of a firearm, and he contends that the district court’s
concern with deterrence is insufficient to support the above-guidelines
sentence.
Generally, revocation sentences are reviewed under 18 U.S.C. § 3742(a)’s
“plainly unreasonable” standard. See United States v. Miller, 634 F.3d 841,
843 (5th Cir. 2011). This is a more deferential standard than the
reasonableness standard that applies to sentences imposed upon conviction.
Id.
The parties agree that plain error review applies because Byrd did not
raise a contemporaneous objection to his sentence; however, the parties do not
control the standard of review. United States v. Vontsteen, 950 F.2d 1086, 1091
(5th Cir. 1992) (en banc). Because Byrd’s arguments fail even under the
plainly unreasonable standard, we need not decide whether the plain error
standard applies. See United States v. Quiroga-Hernandez, 698 F.3d 227, 228
n.2 (5th Cir. 2012).
The district court explained that the 24-month sentence would deter
Byrd from further criminal activity and that the sentence was necessary to
protect the public. The district court also indicated that the sentence was
appropriate given that Byrd had violated his conditions of supervised release
shortly after his release from prison by using drugs and contacting convicted
felons. The record thus reflects that the district court considered the
appropriate sentencing factors of 18 U.S.C. § 3553(a) and that it provided an
explanation of the sentence that was sufficient under the circumstances. See
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Case: 14-10660 Document: 00512988264 Page: 3 Date Filed: 03/31/2015
No. 14-10660
Rita v. United States, 551 U.S. 338, 356 (2007). We have routinely affirmed
revocation sentences like Byrd’s that are above the policy statement range but
do not exceed the statutory maximum. See United States v. Warren, 720 F.3d
321, 332 (5th Cir. 2013). In light of the foregoing, Byrd fails to establish that
his sentence was plainly unreasonable. See Miller, 634 F.3d at 843.
AFFIRMED.
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