United States v. Devin Costine , 414 F. App'x 711 ( 2011 )

Case: 10-50325 Document: 00511398544 Page: 1 Date Filed: 03/02/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 2, 2011
No. 10-50325
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DEVIN WESLEY COSTINE,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:06-CR-25-2
Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Devin Wesley Costine appeals the sentence imposed following the
revocation of his supervised release subsequent to his guilty plea conviction for
attempting to manufacture methamphetamine. The district court initially
continued Costine’s supervised release on the condition that Costine participate
in a residential substance abuse program for 90 days, but it revoked Costine’s
supervised release and sentenced him to 24 months of imprisonment when
Costine did not report to the residential substance abuse program as ordered.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 10-50325
Costine argues that the district court committed procedural error by
failing to provide an adequate explanation for the sentence. He maintains that
the district court was required to provide a detailed explanation for the sentence
because the sentence was an upward variance from the guidelines range. He
contends that the explanation the district court provided was insufficient
because the district court did not explain why it sentenced him to the statutory
maximum sentence instead of a lesser sentence. Assuming arguendo that
Costine’s questioning of the reasons for the sentence at the revocation hearing
preserved this issue for review, this issue is a question of procedural error at
sentencing that we review de novo. See United States v. Garcia Mendoza, 587
F.3d 682, 688 (5th Cir. 2009).
While the district court did not expressly state that it had considered the
18 U.S.C. § 3553(a) sentencing factors, a mechanical recitation of the § 3553(a)
factors was not necessary. See United States v. Smith, 440 F.3d 704, 707 (5th
Cir. 2006). Although the district court’s explanation for the sentence was not
detailed, the facts of the case were simple, making a detailed explanation
unnecessary. See Rita v. United States, 551 U.S. 338, 359 (2007). Costine has
not shown that the district court committed procedural error by failing to
provide adequate reasons for the sentence. See id.
Costine argues that the sentence was substantively unreasonable. He
maintains that while his supervised release violations warranted the revocation
of his supervised release, they did not warrant the statutory maximum sentence
imposed by the district court.
We review revocation sentences under “(a) both the ‘plainly unreasonable’
and the Booker unreasonableness standards of review or (b) the more exacting
Booker unreasonableness standard.” United States v. McKinney, 520 F.3d 425,
428 (5th Cir. 2008). However, because Costine did not object to the sentence as
substantively unreasonable in the district court, we review this issue for plain
error only. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
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No. 10-50325
To show plain error, Costine must show a forfeited error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 129 S. Ct.
1423, 1429 (2009). If he makes such a showing, we have the discretion to correct
the error but will do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
On revocation of supervised release, the district court may impose any
sentence that falls within the statutory maximum term authorized. McKinney,
520 F.3d at 427. Costine’s sentence of 24 months of imprisonment was above the
advisory guidelines range of 7-13 months of imprisonment, but it did not exceed
the statutory maximum. Revocation sentences exceeding the guidelines range
but not exceeding the statutory maximum have been upheld as a matter of
routine against challenges that the sentences were substantively unreasonable.
See Whitelaw, 580 F.3d at 265. As the sentence did not exceed the statutory
maximum, it did not constitute plain error. See id.
AFFIRMED.
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