United States v. Benford , 344 F. App'x 929 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 17, 2009
No. 08-50893
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSEPH BENFORD
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:96-CR-131-2
Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Joseph Benford appeals the 12-month sentence that he received after his
supervised release was revoked. Benford argues that his sentence, which was
outside the guidelines advisory range, was unreasonable because it overstated
the seriousness of his supervised release violations. Because Benford did not
make this argument in the district court, review is for plain error. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Benford fails
to show any error, plain or otherwise.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50893
Although Benford’s sentence was above the advisory guidelines range of
three to nine months of imprisonment, it did not exceed the five-year statutory
maximum sentence to which he was subject. See 18 U.S.C. § 3583(e)(3). We
have routinely affirmed revocation sentences exceeding the advisory range, even
where the sentence equals the statutory maximum. See United States v. Neal,
212 F. App’x 328, 330-31 (5th Cir. 2007); United States v. Jones, 182 F. App’x
343, 344 (5th Cir. 2006). Further, we have affirmed sentences representing
greater deviations from the advisory range than the sentence here. See United
States v. Smith, 417 F.3d 483, 491-92 (5th Cir. 2005) (upholding departure from
guidelines range maximum of 41 months to 120 months); see also Neal, 212 F.
App’x at 330-31 (upholding departure from guidelines range maximum of 14
months to 60 months). Consequently, Benford’s sentence is acceptable under
both the former “plainly unreasonable” and the United States v. Booker, 543 U.S.
220 (2005), “unreasonableness” standards. See United States v. McKinney,
520 F.3d 425, 428 (5th Cir. 2008).
Accordingly, Benford’s sentence is AFFIRMED.
2