United States v. Smith , 362 F. App'x 419 ( 2010 )

Case: 08-31236 Document: 00511012834 Page: 1 Date Filed: 01/26/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 26, 2010
No. 08-31236
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SANDY SMITH, also known as Smitty,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana, Shreveport Division
USDC No. 5:97-CR-50079-4
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Sandy Smith appeals the 18-month sentence imposed following the
revocation of his supervised release for possessing a firearm and committing
another crime. He argues that this sentence is procedurally unreasonable
because there is no record support for the district court’s statement at the
revocation hearing that he had committed a number of violations during his
term of supervised release and because the district court did not provide any
fact-specific reasons for imposing a sentence above the guidelines range of 6-12
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 08-31236 Document: 00511012834 Page: 2 Date Filed: 01/26/2010
No. 08-31236
months of imprisonment. He also contends that the sentence imposed is
substantively unreasonable, citing the fact that he had nearly completed his five-
year term of supervised release.
Because Smith did not properly preserve any objection to the procedural
or substantive reasonableness of the sentence, we review for plain error. See
United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). To show plain
error, Smith must show an error that is clear or obvious and that affects his
substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008),
cert. denied, 129 S. Ct. 962 (2009). If Smith makes such a showing, this court
has the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.Because Smith conceded during the revocation hearing that he had prior
violations, we find no clear error as to this issue. However, we do find clear error
with respect to the district court’s failure to articulate its reasons for imposing
a sentence above the guidelines. See Whitelaw, 580 F.3d at 262. Smith does not
argue that this error affected his substantial rights or the fairness, integrity, or
public reputation of the judicial proceedings. Although the district court did not
specify the reasons for its imposition of sentence, it was the same judge who had
previously sentenced Smith and given him a significant downward departure,
and the transcript of the revocation hearing shows that the court considered the
facts and circumstances of the violation, as well as the nature and
characteristics of the defendant. Accordingly, we find that Smith has not made
a showing of plain error. See id. at 265; see also United States v. Mondragon-
Santiago, 564 F.3d 357, 364-65 & n.6 (5th Cir.), cert. denied, 130 S.Ct. 192(2009).
The 18-month sentence imposed by the district court was half of the 36-
month statutory maximum sentence that the district court could have imposed.
The district court did not plainly err in imposing this sentence. See Whitelaw,
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Case: 08-31236 Document: 00511012834 Page: 3 Date Filed: 01/26/2010
No. 08-31236
580 F.3d at 265; United States v. Hernandez-Martinez, 485 F.3d 270, 274 (5th
Cir. 2007).
Counsel’s motion to correct brief is granted.
AFFIRMED; MOTION GRANTED.
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