United States v. Baker ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 4, 2008
No. 08-10009
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MICHAEL ANTHONY BAKER
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-108-10
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Michael Anthony Baker appeals his consecutive 18-month sentences
following the revocation of his supervised release. We AFFIRM.
In 1998, Baker was found guilty of bank fraud after a jury trial. His
sentence included a period of incarceration, which was followed by a five-year
period of supervised release. In January 2004, Baker began his supervised
release. In September 2007, a probation officer petitioned the court for Baker’s
arrest due to violations of his terms of supervision. A revocation hearing was
*
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should not be published and is not precedent except under the limited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.
No. 08-10009
held in December 2007, resulting in the district judge’s finding that all the
claimed violations had occurred. Baker received two 18-month sentences to run
consecutively, followed by concurrent terms of 42 months of supervised release.
On appeal, Baker argues that the district court sentenced him without
properly considering the factors set forth in 18 U.S.C. § 3553(a), that the district
court exceeded the sentencing range recommended by the policy statements in
the United States Sentencing Guidelines, and that the sentences were made
unreasonable or plainly unreasonable by the requirement that they be served
consecutively. Additionally, Baker asserts that imposition of concurrent 42-
month terms of supervised release further compounds the unreasonable nature
of his sentences.
Prior to United States v. Booker, 543 U.S. 220 (2005), we would uphold a
sentence imposed after revocation of supervised release unless it violated the law
or was plainly unreasonable. United States v. Gonzalez, 250 F.3d 923, 925 (5th
Cir. 2001). Since Booker, appellate courts review a sentence to determine if it
is reasonable, applying an abuse-of-discretion standard. Gall v. United States,
128 S. Ct. 586, 594, 597 (2008). We have not yet, though, decided the
appropriate standard of review for a post-Booker revocation sentence. See
United States v. McKinney, 520 F.3d 425, 428 (5th Cir. 2008). Regardless,
Baker’s sentences are sustainable no matter the standard, as we will discuss.
When sentencing a defendant after the revocation of supervised release,
the district court may impose any sentence that falls within the appropriate
statutory maximum term of imprisonment allowed for the revocation sentence.
18 U.S.C. § 3583(e)(3). In choosing a sentence, the district court is directed to
consider the factors enumerated in Section 3553(a), including the nonbinding
policy statements found in Chapter Seven of the Guidelines. United States v.
Mathena, 23 F.3d 87, 90-93 (5th Cir. 1994).
Baker’s underlying offense of bank fraud is a Class B felony because it
carried a penalty of up to 30 years of imprisonment. 18 U.S.C. §§ 1344,
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No. 08-10009
3559(a)(3). Therefore, the maximum statutory sentence that could be imposed
for the violation of his supervised release was three years. Id. § 3583(e)(3).
Although the 18-month sentences exceeded the advisory range of three to nine
months in prison, they did not exceed the statutory maximum and are therefore
proper. Id.; see also United States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005).
Moreover, the district court considered the policy statements of Chapter Seven
and determined that the facts of the instant case warranted a sentence above the
recommended range.
Lastly, the imposition of consecutive revocation sentences is specifically
authorized by statute, and there was no error in calculating the postrevocation
terms of supervised release. See Gonzalez, 250 F.3d at 926; United States v.
Vera, 542 F.3d 457, 459 (5th Cir. 2008). Baker has not shown that the sentences
imposed following the revocation of his supervised release were unreasonable or
plainly unreasonable. See McKinney, 520 F.3d at 428.
The district court’s judgment is AFFIRMED.
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