United States v. Brandon Shannon ( 2018 )

Case: 17-11184 Document: 00514469097 Page: 1 Date Filed: 05/11/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-11184
Fifth Circuit
FILED
Summary Calendar May 11, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
BRANDON MAURICE SHANNON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:12-CR-4-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
The district court revoked Brandon Maurice Shannon’s supervised
release and imposed an 18-month sentence of imprisonment. For the first time
on appeal, Shannon asserts that there was an error in the determination of his
criminal history category in the sentencing on his underlying felon-in-
possession of a firearm conviction. He argues that a correct determination of
his criminal history score would have resulted in his placement in criminal
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11184
history category III, rather than criminal history category IV, and that his
sentencing range in the instant case therefore should have been 5 to 11 months
of imprisonment under U.S.S.G. § 7B1.4(a), p.s., rather than 6 to 12 months,
as determined by the district court. Shannon contends that the district court’s
failure to consider the error with respect to his criminal history category
renders the revocation sentence in the instant case plainly unreasonable both
substantively and procedurally.
Generally, revocation sentences are reviewed under the “plainly
unreasonable” standard established by 18 U.S.C. § 3742(a). See United States
v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). However, because Shannon did
not object to his sentence in the district court, our review is limited to plain
error. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
Under the plain error standard, Shannon must show a clear or obvious error
that affected his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009). If he makes these showings we have the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. See id.
Shannon asserts that revocation sentences should be reviewed to
determine if they are unreasonable, rather than plainly unreasonable. He also
contends that a defendant need not object in order to preserve a claim that his
sentence was substantively unreasonable. As Shannon notes, our precedents
foreclose these arguments. See Miller, 634 F.3d at 843; United States v. Peltier,
505 F.3d 389, 392 (5th Cir. 2007). He raises the issues to preserve them for
further review.
District courts are required to “begin all sentencing proceedings by
correctly calculating the applicable Guidelines range.” Gall v. United States,
552 U.S. 38, 49 (2007). In reviewing a sentence, an appellate court’s first task
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No. 17-11184
is to “ensure that the district court committed no significant procedural error.”
Id. at 50. A district court commits a significant procedural error if it
improperly calculates the Guidelines range. Id.
“The criminal history category under § 7B1.4(a) is defined as ‘the
category applicable at the time the defendant was originally sentenced to a
term of supervision.’” United States v. McKinney, 520 F.3d 425, 428 (5th Cir.
2008); see U.S.S.G. § 7B1.4(a) cmt. n.1. Here, the district properly used the
criminal history category applicable when Shannon was sentenced on his
conviction of being a felon in possession of a firearm to determine his
sentencing range under § 7B1.4(a). See id. At a minimum, it was not plain
error to do so. A defendant may not challenge the calculation of his criminal
history score for the first time in an appeal from a sentence imposed on the
revocation of supervised release. See United States v. Hinson, 429 F.3d 114,
116 (5th Cir. 2005).
In view of the foregoing, Shannon fails to show plain error. See Puckett,
556 U.S. at 135. His revocation sentence is therefore AFFIRMED.
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