United States v. Kevorick Shedwin , 556 F. App'x 347 ( 2014 )

Case: 13-50610 Document: 00512541103 Page: 1 Date Filed: 02/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-50610 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
February 21, 2014
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
KEVORICK TIVELLVA SHEDWIN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:08-CR-277-1
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
Kevorick Tivellva Shedwin appeals the 36-month, above-guidelines
sentence imposed by the district court following the revocation of the term of
supervised release imposed after Shedwin’s conviction of possession with
intent to distribute cocaine base. He argues that the sentence is unreasonable
because, in formulating the sentence, the district court improperly considered
his arrest in Odessa, Texas, and improperly considered two reports by the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50610
United States Marshals Service (USMS) that were not admitted into evidence.
He also argues that the sentence is excessive.
This court ordinarily reviews sentences imposed on revocation of
supervised release under a plainly unreasonable standard. United States v.
Warren, 720 F.3d 321, 326 (5th Cir. 2013). When, as here, a defendant does
not preserve his objection for appeal, this court reviews revocation sentences
for plain error. Id. To show plain error, the appellant must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If the appellant 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.A district “may impose any sentence that falls within the appropriate
statutory maximum term of imprisonment allowed for the revocation
sentence.” United States v. McKinney, 520 F.3d 425, 427 (5th Cir. 2008); see
18 U.S.C. § 3583(e)(3). In doing so, the district court is directed to consider the
relevant factors enumerated in 18 U.S.C. § 3553(a), including the non-binding
policy statements found in Chapter Seven of the Sentencing Guidelines.
United States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011).
Shedwin does not contest the underlying revocation, only the sentence
imposed. The revocation transcript shows that the district court did not rely
upon Shedwin’s Odessa arrest in formulating the sentence. Accordingly,
Shedwin’s argument that the district court improperly relied upon this
information is without merit.
Shedwin’s argument that the district court improperly relied upon two
USMS reports in formulating his sentence is likewise unavailing. Shedwin did
not object to the district court’s consideration of the reports or to the
Government’s summary of the contents of those reports. He cites no authority
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No. 13-50610
for the proposition that the district court’s consideration of the reports was
plainly erroneous. Moreover, he has not demonstrated that there is a
reasonable probability that he would have received a lesser sentence but for
the district court’s consideration of those reports. See United States v. Davis,
602 F.3d 643, 647 (5th Cir. 2010).
Finally, Shedwin has not demonstrated that the district court plainly
erred by imposing the statutory maximum sentence. See Puckett, 556 U.S. at
135. Revocation sentences exceeding the policy statements range but not
exceeding the statutory maximum have been upheld as a matter of routine and
do not constitute plain error. United States v. Whitelaw, 580 F.3d 256, 265 (5th
Cir. 2009).
The record reflects extensive consideration by the district court of
Shedwin’s personal history and characteristics, the circumstances of his
violations of the conditions of supervised release, the need for deterrence, and
the policy statements set forth in the Guidelines. See § 3583(e); Miller, 634
F.3d at 844. “[A]fford[ing] adequate deterrence to criminal conduct” and
“protect[ing] the public from further crimes of the defendant” are proper factors
for the district court to consider in imposing a revocation sentence.
§ 3553(a)(2)(B), (a)(2)(C); § 3583(e). As Shedwin has not demonstrated plain
error with respect to his sentence, the judgment of the district court is
AFFIRMED.
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