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United States v. Kevin Brooks ( 2019 )


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  •      Case: 19-10105        Document: 00515228802       Page: 1    Date Filed: 12/09/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
December 9, 2019
No. 19-10105
Summary Calendar                       Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
KEVIN DEWAYNE BROOKS, also known as Kevin Dwayne Brooks,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-196-4
Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM: *
Kevin Dewayne Brooks appeals the 24-month sentence of imprisonment
imposed following the revocation of his term of supervised release.                     He
contends that the above-guidelines sentence is procedurally and substantively
unreasonable.
Generally,     we    review    revocation     sentences     under     the   plainly
unreasonable standard, examining first for procedural error and then for
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10105     Document: 00515228802      Page: 2    Date Filed: 12/09/2019
No. 19-10105
substantive reasonableness.      United States v. Warren,
    720 F.3d 321
    , 326
(5th Cir. 2013). However, when a district court was not put on notice of the
arguments presented on appeal pertaining to a revocation sentence, plain error
review applies. See United States v. Hernandez–Martinez,
    485 F.3d 270
    , 273
(5th Cir. 2007). Here, Brooks’s request for a lenient sentence was insufficient
to assert the specific procedural errors he now raises on appeal, and therefore
plain error review applies to the procedural issues.           See United States
v. Whitelaw,
    580 F.3d 256
    , 259 (5th Cir. 2009).
To demonstrate plain error, Brooks must show a forfeited error that is
clear or obvious and that affects his substantial rights. See Puckett v. United
States,
    556 U.S. 129
    , 135 (2009). If he makes such a showing, we have the
discretion to correct the error but do so “only if the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
    Id. (alteration in 
    original) (internal quotation marks omitted) (quoting United States v. Olano,
    507 U.S. 725
    , 736 (1993)).
Brooks’s contention that the district court erred procedurally by failing
to explain its sentence adequately is contradicted by the record. After Brooks
requested a below-guidelines sentence, the district court noted that Brooks had
begun violating the conditions of his supervised release soon after his release
from prison. The court also reviewed Brooks’s extensive criminal history.
Following that review, the district court stated that a 24-month sentence was
necessary to address the appropriate sentencing factors. Although the district
court did not expressly discuss the 18 U.S.C. § 3553(a) factors, the record shows
that it considered them, and, in any event, “[i]mplicit consideration of the
§ 3553 factors is [generally] sufficient.” United States v. Kippers,
    685 F.3d 491
    ,
498 (5th Cir. 2012) (alteration in original) (quoting United States v. Teran,
    98 F.3d 831
    , 836 (5th Cir. 1996)). Thus, Brooks has failed to show clear or obvious
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Case: 19-10105    Document: 00515228802      Page: 3   Date Filed: 12/09/2019
No. 19-10105
error. See
    Puckett, 556 U.S. at 135
    . Further, Brooks has not shown that any
deficiency in the explanation affected his substantial rights, as he has not
shown that a more detailed explanation would have resulted in a lower
sentence. See
    Whitelaw, 580 F.3d at 263-65
    .
To the extent that Brooks bases his procedural reasonableness argument
on the contention that the district court failed to consider the correct advisory
guidelines range, we reject his contention that the district court’s statement
that a sentence “at the very top” was necessary to achieve the goals of
sentencing shows that the district court mistakenly believed that the top of the
advisory guidelines range was 24 months. The district court was informed by
the violator’s petition that the advisory guidelines range was 5 to 11 months
and that Brooks was subject to a two-year statutory maximum term of
imprisonment. Brooks has failed to show clear or obvious error. See
    Puckett, 556 U.S. at 135
    .
With regard to Brooks’s contention that his sentence is substantively
unreasonable, we treat the issue as preserved and review it by applying the
plainly unreasonable standard. See
    Warren, 720 F.3d at 326
    . “A sentence is
substantively unreasonable if it (1) does not account for a factor that should
have received significant weight, (2) gives significant weight to an irrelevant
or improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors.”
    Id. at 332 
    (internal quotation marks omitted) (quoting
United States v. Peltier,
    505 F.3d 389
    , 392 (5th Cir. 2007)).
We regularly uphold revocation sentences exceeding the recommended
range, even in cases when the sentence is the statutory maximum. Id.; see
    Whitelaw, 580 F.3d at 265 
    (upholding 36-month sentence when the guidelines
range was 4 to 10 months of imprisonment).           The fact that we “might
reasonably have concluded that a different sentence was appropriate is
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No. 19-10105
insufficient to justify reversal of the district court.”
    Warren, 720 F.3d at 332 
    (quoting Gall v. United States,
    552 U.S. 38
    , 51 (2007)).
The judgment of the district court is AFFIRMED.
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