United States v. Freeman , 80 F. App'x 934 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 14, 2003
Charles R. Fulbruge III
Clerk
No. 03-10509
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEROME FREEMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:96-CR-00094-2
Before GARWOOD, DEMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Jerome Freeman appeals the revocation of his supervised
release and the twenty-four-month sentence imposed by the district
court. He argues that the district court’s judgment should be
vacated and his case remanded because the district court erred in
characterizing his supervised-release violations as Grade B
violations under the policy statements set forth by the Sentencing
*
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opinion should not be published and is not precedent except under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.
Commission, when they were only Grade C violations. Freeman
contends that the district court thus considered the incorrect
sentence available and an inapplicable sentencing range, in
violation of 18 U.S.C. §§ 3583(e) and 3553(a)(4) which require
consideration of the appropriate policy statements.
Because Freeman did not assert this argument in the district
court, this court’s review is for plain error only. See Fed. R.
Crim. P. 52(b); United States v. Calverley, 38 F.3d 160, 162-64
(5th Cir. 1994) (en banc), abrogated in part, Johnson v. United
States, 520 U.S. 461 (1997). As the parties agree, the district
court committed error at Freeman’s revocation hearing in concluding
that the supervised-release violations were Grade B violations, and
the error was arguably clear in light of U.S.S.G. § 7B1.1, p.s.,
and the Texas statutes relating to Freeman’s violations. See
Calverley, 37 F.3d 162-64. However, Freeman fails to demonstrate
that the district court’s error affected his substantial rights.
See id.Although the district court is required under 18 U.S.C. §
3553(a)(4) to consider the applicable policy statements, this court
has held that the policy statements relating to revocation of
supervised release and resentencing after revocation are advisory
only and non-binding. United States v. Mathena, 23 F.3d 87, 92-93
(5th Cir. 1994). Because there are no applicable Sentencing
Guidelines, this court will uphold a defendant’s “revocation and
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sentence unless it is in violation of law or is plainly
unreasonable.” United States v. Teran, 98 F.3d 831, 836 (5th Cir.
1996).
The district court’s revocation of Freeman’s supervised
release and its imposition of a twenty-four-month sentence were not
in violation of law, but were in accordance with the governing
statutory authority, 18 U.S.C. § 3583(e)(3). See Teran, 98 F.3d at
836. Because the district court could, on remand, revoke Freeman’s
supervised release and impose the same sentence (and such a
sentence would not be plainly unreasonable), Freeman fails to
demonstrate that his substantial rights were affected by the
district court’s error in classifying his supervised-release
violations as Grade B violations. See United States v. Leonard,
157 F.3d 343, 346 (5th Cir. 1998). Consequently, he fails to
satisfy the plain error standard of review. Id.; See also United
States v. Wheeler, 322 F.3d 823, 828 (5th Cir. 2003); Calverley, 37
F.3d at 164.
Accordingly, the district court’s judgment is
AFFIRMED.
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