United States v. Joshua Lovett ( 2018 )

Case: 17-50265 Document: 00514431509 Page: 1 Date Filed: 04/16/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-50265
Fifth Circuit
FILED
Summary Calendar April 16, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
JOSHUA JERMAINE LOVETT,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:03-CR-59-1
Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
Joshua Jermaine Lovett appeals the sentence imposed following the
revocation of his supervised release term. He contends that the 36-month,
above-guidelines sentence was unreasonable because it gave significant weight
to an irrelevant or improper factor, specifically, the Government’s unproven
allegations that he committed a new drug crime. Lovett also contends that the
district court failed to adequately explain its reasons for imposing the sentence.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 17-50265
Because Lovett did not object to the adequacy of the district court’s explanation
or the reasonableness of the sentence after it was imposed, our review is
limited to plain error. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th
Cir. 2009).
The record reflects that the district court sufficiently articulated its
reasons for imposing the above-guidelines revocation sentence. See United
States v. Kippers, 685 F.3d 491, 498-99 (5th Cir. 2012). Even if we were to
conclude that the district court’s explanation was inadequate, Lovett cannot
show that the error affected his substantial rights because nothing in the
record suggests that his sentence would have been different if the court had
provided more extensive reasons. See Whitelaw, 580 F.3d at 264-65.
Lovett likewise cannot show that the above-guidelines sentence gave
significant weight to an irrelevant or improper factor. See United States v.
Warren, 720 F.3d 321, 332 (5th Cir. 2013). Although Lovett did not plead true
to allegations that he violated the conditions of his supervised release by
committing new drug crimes, he did not dispute that he was subject to the 6 to
12-month range applicable to Grade B violations, and he admitted that the
facts set forth in the probation officer’s initial and amended petitions, as
summarized by the district court, were true. Based on those facts, the district
court did not plainly err in finding that the preponderance of the evidence
supported a reasonable inference that Lovett knowingly possessed the
marijuana found in his vehicle. See United States v. Alaniz-Alaniz, 38 F.3d
788, 792 (5th Cir. 1994).
The record reflects that the district court considered the recommended
imprisonment range, the 36-month statutory maximum term of imprisonment,
the nature and circumstances of Lovett’s supervised release violations, Lovett’s
history and characteristics, and Lovett’s repeated inability to comply with the
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Case: 17-50265 Document: 00514431509 Page: 3 Date Filed: 04/16/2018
No. 17-50265
conditions of his supervised release. The district court implicitly concluded
that the 36-month sentence was appropriate based on the circumstances of the
case and the 18 U.S.C. § 3553(a) factors. We have routinely upheld revocation
sentences exceeding the recommended range, even where the sentence is the
statutory maximum. Warren, 720 F.3d at 332. Because Lovett has failed to
show that his revocation sentence is plainly unreasonable or plainly erroneous,
see id. at 326, 332-33, the district court’s judgment is AFFIRMED.
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