United States v. Keith Netherland ( 2017 )

Case: 16-60507 Document: 00513850997 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. 16-60507 FILED
Summary Calendar January 26, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KEITH S. NETHERLAND,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:04-CR-135-1
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Keith S. Netherland appeals his 24-month sentence imposed following
the second revocation of his term of supervised release arising from his 2005
guilty plea to being a felon in possession of a firearm. He argues that his
sentence was procedurally unreasonable because the district court did not
provide a legally sufficient reason for imposing a sentence above the
recommended policy statement range.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60507
Netherland did not specifically object at sentencing to the district court’s
failure to provide adequate reasons for imposing an above-guidelines sentence.
Thus, review of this claim is for plain error only, requiring a showing of an
error that is clear or obvious and affects his substantial rights. United States
v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). While required to provide
some explanation for a sentence above the recommended range, review of the
adequacy of the district court’s reasons for a revocation sentence is more
deferential than review of the original sentence. United States v. Miller, 634
F.3d 841, 843 (5th Cir. 2011).
The district court specifically stated that it had considered the Chapter 7
policy statements and the advisory guidelines sentencing range and explicitly
considered the 18 U.S.C. § 3553(a) sentencing factors, as reflected in its
comments on the nature and circumstances of the violations, Netherland’s
historic and characteristic failure to take advantage of opportunities provided
to him, and the need to impose a sentence to deter Netherland from repeating
the violations of the conditions of supervised release. See Whitelaw, 580 F.3d
at 261. The reasons provided by the district court were more than sufficient to
allow this court to review the district court’s justification for the sentence and
to assess its reasonableness. See id. at 264-65. Netherland has not
demonstrated a procedural error by the district court that constitutes clear or
obvious error that affected his substantial rights. Id. at 259-60.
In arguing that his sentence is substantively unreasonable, Netherland
asserts that evidence of the totality of the circumstances surrounding the
violation of his supervised release was limited to his undisputed testimony
given at the hearing. According to Netherland, he provided legitimate and
undisputed reasons for his failure to comply with the conditions of supervised
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No. 16-60507
release, and this evidence did not justify the statutory maximum sentence he
received.
At sentencing, Netherland preserved the issue of the substantive
reasonableness of his sentence, and, therefore, review is for an abuse of
discretion, examining the totality of the circumstances. See United States v.
Warren, 720 F.3d 321, 332 (5th Cir. 2013). The district court expressly
considered the policy statements and relevant § 3553(a) factors and made it
clear that Netherland’s repeated failure to comply with the conditions of
supervised release and inability to take responsibility for his actions required
it to impose the statutory maximum. The district court’s credibility
determinations are entitled to great deference. See United States v. Alaniz-
Alaniz, 38 F.3d 788, 791 (5th Cir. 1994). Based on the totality of the
circumstances, Netherland has not shown that the 24-month sentence imposed
was unreasonable and, thus, he has not demonstrated that the sentence was
substantively unreasonable or that it is plainly unreasonable. See United
States v. Kippers, 685 F.3d 491, 500-01 (5th Cir. 2012). The sentence is
AFFIRMED.
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