United States v. James Howell , 351 F. App'x 959 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 4, 2009
No. 09-10178
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAMES CHARLES HOWELL, also known as Jay Howell,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-473-1
Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
James Charles Howell appeals the ten-month sentence imposed following
the revocation of his supervised release. Howell argues that under 18 U.S.C.
§ 3583(e), when imposing a sentence upon revocation of supervised release, a
district court may consider all of the factors in 18 U.S.C. § 3553(a) as set forth
in § 3583(e)(3), except for § 3553(a)(2)(A), “the need for the sentence imposed to
reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense.” §§ 3583(e); 3553(a)(2)(A). He argues
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10178
that the district court plainly erred when it considered the need to achieve just
punishment when imposing his sentence following revocation of his supervised
release.
Howell acknowledges that he did not raise this argument in the district
court and that review is limited to plain error. To show plain error, Howell must
show an error that is clear or obvious and that affects his substantial rights.
United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct.
962 (2009). If he makes such a showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.Howell has not shown that the district court plainly erred in considering
the need to achieve “just punishment” in imposing a sentence upon revocation
of his supervised release. We have not previously reached this issue and there
is a split of authority among other circuit courts regarding whether the need for
just punishment can be considered. See, e.g., United States v. Miqbel, 444 F.3d
1173, 1182 (9th Cir. 2006); United States v. Lewis, 498 F.3d 393, 399-400 (6th
Cir. 2007). Thus, any error that there may have been in the district court’s
consideration of just punishment, an issue we do not decide here, was not clear
or obvious. See United States v. Salinas, 480 F.3d 750, 759 (5th Cir.), cert.
denied, 128 S. Ct. 487 (2007); United States v. Garcia-Rodriguez, 415 F.3d 452,
455 (5th Cir. 2005). In addition, if there was error, it did not affect Howell’s
substantial rights; the court gave him a sentence within the guidelines range,
and Howell points to nothing to show that if the court had not considered the
purportedly improper factor, his sentence likely would have been different. See,
e.g., United States v. Mondragon-Santiago, 564 F.3d 357, 364-65 (5th Cir. 2009),
petition for cert. filed, (June 24, 2009) (No. 08-11099).
AFFIRMED.
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