United States v. Korea McKay ( 2017 )

Case: 16-60091 Document: 00513850215 Page: 1 Date Filed: 01/26/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60091 FILED
Summary Calendar January 26, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KOREA MCKAY, also known as Wack,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:13-CR-102-1
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Korea McKay has appealed the district court’s judgment revoking his
supervised release and imposing a 24-month term of imprisonment and a 60-
month period of supervised release after he was charged in state court with
aggravated assault and being a felon in possession of a weapon.
McKay contends that there was insufficient evidence showing that he
violated the conditions of his supervised release. He asserts that the district
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-60091 Document: 00513850215 Page: 2 Date Filed: 01/26/2017
No. 16-60091
court erred in crediting the testimony of the Government’s witnesses, including
the assault victim, Jeremy Talbert, and in discrediting the inconsistent
testimony of a witness called by the defense. It is not our function to pass on
the district court’s determination regarding Talbert’s credibility. See United
States v. Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994). His testimony was
not incredible as a matter of law. See id. The district court did not abuse its
discretion in determining that McKay violated a condition of his supervised
release. See United States v. Minnitt, 617 F.3d 327, 332 (5th Cir. 2010).
McKay contends also that the sentence was substantively unreasonable.
He asserts that, in determining the sentence, the district court gave improper
consideration to his prior criminal history, which included offenses that did not
result in convictions. Our review of this contention is for plain error. See
United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013).
To prevail on plain error review, McKay must identify (1) a forfeited
error (2) that is clear or obvious, rather than subject to reasonable dispute, and
(3) that affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 135 (2009). If he satisfies the first three requirements, this court may, in
its discretion, remedy the error if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks and citation omitted).
Once a district court finds by a preponderance of the evidence that the
defendant has violated a condition of supervised release, the court “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). McKay
does not dispute that the sentence was within the statutory maximum. In
determining a revocation sentence, the district court may consider the relevant
2
Case: 16-60091 Document: 00513850215 Page: 3 Date Filed: 01/26/2017
No. 16-60091
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).
McKay’s complaint is that the district court erred in considering offenses
that were not reduced to judgment and offenses of which he was acquitted in
reviewing his criminal history. The district court relied on other permissible
factors, such as protection of the public, and McKay makes no effort to show
that the error violated his substantial rights or that it affected the fairness,
integrity or public reputation of the judicial proceeding. See Puckett, 556 U.S.
at 135. Thus, he has not shown reversible plain error. See id. The judgment
is AFFIRMED.
3