United States v. Dorian Givens ( 2019 )

Case: 18-30594 Document: 00514779279 Page: 1 Date Filed: 01/02/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-30594 FILED
Summary Calendar January 2, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DORIAN GIVENS, also known as Doe Givens,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CR-259-2
Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Dorian Givens appeals the consecutive 36-month
and two 24-month terms of imprisonment imposed on revocation of his terms
of supervised release. He asserts that the district court failed to explain his
sentence adequately, failed to consider the relevant 18 U.S.C. § 3553(a) factors,
including the applicable guideline range, and selected his sentence based on
clearly erroneous facts. Givens further contends that his sentence is
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-30594 Document: 00514779279 Page: 2 Date Filed: 01/02/2019
No. 18-30594
substantively unreasonable because the district court improperly considered
the factors in § 3553(a)(2)(A), failed to account for the Chapter Seven policy
statements of the U.S. Sentencing Guidelines and the need to avoid
unwarranted sentence disparities, and made a clear error of judgment in
balancing the proper sentencing factors.
We review a sentence imposed on revocation of supervised release under
a “plainly unreasonable” standard, in a two-step process. United States v.
Miller, 634 F.3d 841, 843 (5th Cir. 2011). We first “‘ensure that the district
court committed no significant procedural error,’ such as failing to consider the
§ 3553(a) factors, selecting a sentenced based on clearly erroneous facts, or
failing to adequately explain the chosen sentence, including failing to explain
a deviation from the Guidelines range.” United States v. Kippers, 685 F.3d 491,
497 (5th Cir. 2012) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If
we find no procedural error, we next review the substantive reasonableness of
the sentence imposed. Id. “If we find the sentence unreasonable, we may
reverse the district court only if we further determine the error was obvious
under existing law.” United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013)
(internal quotation marks and citation omitted).
The record reflects that the district court “understood the guidelines
range[,] . . . considered § 3553(a)’s factors at least implicitly, did not select a
sentence based on clearly erroneous facts, and did not fail to adequately
explain his sentence.” Kippers, 685 F.3d at 499. Givens does not point to any
materially untrue information relied on by the district court; he merely
disputes the district court’s characterization of his criminal record and
conduct, which is insufficient to show that the district court erred. See Warren,
720 F.3d at 331.
2
Case: 18-30594 Document: 00514779279 Page: 3 Date Filed: 01/02/2019
No. 18-30594
We review the substantive reasonableness of a challenged sentence for
abuse of discretion. Miller, 634 F.3d at 843. A revocation sentence is
substantively unreasonable if the district court did not account for a factor that
should have received significant weight, gave significant weight to an
irrelevant or improper factor, or made a clear error of judgment in balancing
the sentencing factors. Warren, 720 F.3d at 332. Further, “because the
sentence now under review is a revocation sentence, any abuse of discretion
must also be obvious under existing law.” United States v. Sanchez, 900 F.3d
678, 685 (5th Cir. 2018) (internal quotation marks and citation omitted). A
district court may not base a revocation sentence on the factors listed at
§ 3553(a)(2)(A), and to do so is clear error. United States v. Rivera, 784 F.3d
1012, 1017-18 (5th Cir. 2015).
The record reflects that the district court implicitly considered the
Chapter Seven policy statements and found the applicable advisory range
insufficient. The district court did not expressly state that it considered the
factors in § 3553(a)(2)(A), and the record does not indicate that the court
improperly relied on those factors. Unlike the court in Miller, 634 F.3d at 844,
the district court here did not mention lack of “respect for the law,” and the
comments made are consistent with the permissible factors of deterrence and
protection of the public. § 3553(a)(2)(B)-(C); see Sanchez, 900 F.3d at 684.
Although Givens contends that the disparity between his sentence and that of
a co-defendant who received only 13 months of imprisonment on revocation of
supervised release is unwarranted, he fails to show that he and that co-
defendant were similarly situated. See United States v. Guillermo Balleza, 613
F.3d 432, 435 (5th Cir. 2010). Finally, Givens’s contention that “his limited
criminal history and lack of violent offenses” warranted a lesser sentence
amounts to mere disagreement with the district court’s balancing of the §
3
Case: 18-30594 Document: 00514779279 Page: 4 Date Filed: 01/02/2019
No. 18-30594
3553(a) factors and thus is insufficient to show that the court made a clear
error of judgment. See Gall, 552 U.S. at 51. “We have routinely affirmed
revocation sentences exceeding the advisory range, even where the sentence
equals the statutory maximum.” Warren, 720 F.3d at 332 (internal quotation
marks and citation omitted); see also United States v. Fuentes, 906 F.3d 322,
324-27 (5th Cir. 2018).
Givens has not shown that his revocation sentence is plainly
unreasonable. See Miller, 634 F.3d at 843. The judgment of the district court
is therefore AFFIRMED.
4