United States v. Aubrey Davis ( 2015 )

Case: 14-31022 Document: 00513076928 Page: 1 Date Filed: 06/12/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-31022
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 12, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
AUBREY DAVIS,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CR-366-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Aubrey Davis appeals the revocation of his
supervised release and the resulting sentence of one year and one day of
imprisonment, followed by 18 months of supervised release. Davis argues that
the district court abused its discretion in revoking his supervised release
because the decision was based on a finding that Davis violated a condition to
which he was not subject. He also contends that his supervised release should
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-31022 Document: 00513076928 Page: 2 Date Filed: 06/12/2015
No. 14-31022
not have been revoked because many of his problems had been resolved and he
was not homeless voluntarily; therefore, he asserts, his technical violations did
not warrant revocation. Davis contends that the district court considered an
improper factor of 18 U.S.C. § 3553(a)(2)(A) when deciding to revoke and when
imposing his sentence. He challenges as unconstitutional the condition of
supervised release that he notify the probation officer of a change in residence.
Finally, he argues that his sentence is substantively unreasonable because the
district court should not have imposed another term of supervised release.
The only issue preserved for appellate review is Davis’s argument that
the district court should not have revoked his supervised release based on the
violations. We review the district court’s decision for abuse of discretion. See
United States v. Grandlund, 71 F.3d 507, 509 (5th Cir. 1996). All other
arguments are subject to plain error review. See United States v. Whitelaw,
580 F.3d 256, 259 (5th Cir. 2009); United States v. Magwood, 445 F.3d 826, 828
(5th Cir. 2006).
Davis’s challenge to the district court’s decision to revoke his supervision
based on a finding that Davis violated a condition of supervised release not
included in the original judgment fails. Even if the court could not revoke
Davis’s release on the finding that he failed to notify the probation officer of a
change in residence within 72 hours, there is no evidence that Davis complied
with the condition as stated in the original judgment. Rather, the evidence
showed that Davis did not inform the probation officer of the change in
residence for several months and that Davis’s whereabouts were unknown.
Additionally, Davis admitted to violating this condition. There is no clear or
obvious error in revoking Davis’s supervised release for violating a condition
which he admitted that he violated. See Puckett v. United States, 556 U.S. 129,
135 (2009).
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No. 14-31022
Davis’s argument that his violations did not warrant revocation is also
unavailing. The record showed that he was in violation of the conditions of
supervised release. The district court did not abuse its discretion in revoking
Davis’s supervision. See United States v. Hinson, 429 F.3d 114, 118-19 (5th
Cir. 2005).
The record is ambiguous as to whether the district court considered an
improper factor in deciding to revoke and in determining an appropriate
sentence. Although the court did not specifically reference 18 U.S.C.
§ 3553(a)(2)(A), Davis contends that particular statements reflect that the
court considered the need to promote respect for the law, a factor omitted from
the directive of § 3583(e). See United States v. Miller, 634 F.3d 841, 844 (5th
Cir. 2011). Even if we assume there was clear or obvious error, Davis cannot
show that the error affected his substantial rights because there is no
indication that the district court’s decision to revoke was based on this factor
alone. See Puckett, 556 U.S. at 135. Additionally, Davis fails to show that he
would have received a lesser sentence but for the alleged error. See United
States v. Whitelaw, 580 F.3d 256, 264-65 (5th Cir. 2009).
As for Davis’s constitutional challenge, his argument is, at best, subject
to reasonable debate and therefore is not clear or obvious error. See United
States v. Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009). Moreover, in light of the
fact that Davis’s revocation was also based on a finding that he failed to report
to his probation officer, Davis’s substantial rights were not affected by the
alleged error. See Puckett, 556 U.S. at 135.
Under 18 U.S.C. § 3583(h), the district court was authorized to imposed
an additional term of supervised release. The fact that we “might reasonably
have concluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.” United States v. Warren, 720 F.3d 321,
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332 (5th Cir. 2013) (internal quotation marks and citation omitted). Davis fails
to show that the imposition of an 18-month term of supervised release is
plainly unreasonable or plainly erroneous. See id. at 326, 332-33.
The judgment of the district court is AFFIRMED.
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