United States v. Rachel Perry ( 2019 )

Case: 19-10189 Document: 00515209100 Page: 1 Date Filed: 11/21/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10189 November 21, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RACHEL PERRY,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:15-CR-74-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Rachel Perry challenges the 18-month prison sentence that she received
upon revocation of her supervised release. She contends that her sentence is
procedurally unreasonable because the district court failed to provide
sufficient reasons, and substantively unreasonably because the district court
failed to properly weigh the recommended sentencing range and her
arguments in favor of a lesser 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10189
We generally review a revocation sentence under a “plainly
unreasonable” standard, but will review only for plain error where a party fails
to make a contemporaneous objection specific enough to alert the district court
to the alleged error. United States v. Fuentes, 906 F.3d 322, 325 (5th Cir. 2018),
cert. denied, 139 S. Ct. 1363 (2019); United States v. Warren, 720 F.3d 321, 327
(5th Cir. 2013). We need not decide whether Perry preserved her
reasonableness challenges by simply requesting a sentence within the
guidelines range because her arguments fail even under the plainly
unreasonable standard. See United States v. Quiroga-Hernandez, 698 F.3d
227, 228 (5th Cir. 2012).
Here, the district court had presided over Perry’s original sentencing and
her first revocation hearing. The court listened to and considered Perry’s
mitigation arguments but found that the higher sentence and no further term
of supervised release was appropriate under the 18 U.S.C. § 3553(a) factors of
deterrence and protecting the public. See § 3553(a)(2)(B) and (C); 18 U.S.C.
§ 3583(e). Although the district court did not engage in a “checklist recitation
of the section 3553(a) factors,” the reasons for the sentence were clear and
permitted effective review. United States v. Fraga, 704 F.3d 432, 439 (5th Cir.
2013).
As for substantive reasonableness, the revocation sentence of 18 months
was higher than the range of 5 to 11 months recommended by the policy
statements, but below the statutory maximum term of 2 years. See
§ 3583(e)(3); U.S.S.G. § 7B1.4. The district court explicitly referenced the
guidelines policy statements and listened to Perry’s arguments in mitigation.
The circumstances of the case, including Perry’s inability to abide by the terms
of supervised release and the danger her drug use posed to the public, support
the district court’s conclusion that a longer sentence was appropriate. Under
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Case: 19-10189 Document: 00515209100 Page: 3 Date Filed: 11/21/2019
No. 19-10189
the totality of the circumstances in this case, the district court did not abuse
its discretion in imposing Perry’s revocation sentence. See Warren, 720 F.3d
at 332.
AFFIRMED.
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