United States v. Donald Carter ( 2011 )

Case: 10-30365 Document: 00511512236 Page: 1 Date Filed: 06/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2011
No. 10-30365
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DONALD ELLERY CARTER, also known as Boss Carter,
Defendant-Appellant
Consolidated with
No. 10-30366
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DONALD ELLERY CARTER,
Defendant-Appellant
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CR-210-1
Case: 10-30365 Document: 00511512236 Page: 2 Date Filed: 06/17/2011
No. 10-30365 c/w No. 10-30366
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Donald Ellery Carter appeals his 60-month sentence imposed following the
revocation of his supervised release. Carter argues that the revocation sentence
was unreasonable.
Post-Booker, revocation sentences are ordinarily reviewed under a “plainly
unreasonable standard.” United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011). However, where the defendant made no objection to his revocation
sentence in the district court, review of the sentence is for plain error only.
United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007). To show plain error,
the defendant must show a forfeited error that is clear or obvious and that
affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). If the defendant 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.Carter argues that the revocation sentence was unreasonable because the
district court improperly considered the factors of 18 U.S.C. § 3553(a)(2)(A), i.e.,
the need for the sentence “to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense. Because
Carter failed to object to the use of the § 3553(a)(2)(A) factors in determining his
sentence, the applicable standard of review for this issue is plain error. See
United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). This court
recently determined that “it is improper for a district court to rely on
§ 3553(a)(2)(A) for the modification or revocation of a supervised release term.”
United States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011). The district court,
however, did not clearly consider the factors set forth in § 3553(a)(2)(A). Thus,
*
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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Case: 10-30365 Document: 00511512236 Page: 3 Date Filed: 06/17/2011
No. 10-30365 c/w No. 10-30366
the district court did not commit clear or obvious error. See Puckett, 129 S. Ct.
at 1429.
Carter also argues that the district court’s reliance on his heroin conviction
in order to revoke his supervised release violated the Double Jeopardy Clause.
He has not shown plain error with respect to this issue because there is no
double jeopardy protection against the imposition of a sentence following
revocation of supervised release, as such a sentence is considered to be part of
the penalty for the original conviction. See Puckett, 129 S. Ct. at 1429; United
States v. Jackson, 559 F.3d 368, 371 (5th Cir. 2009).
Finally, Carter argues that the revocation sentence, which was above the
advisory policy range but within the statutory maximum, was excessive. This
court has affirmed revocation sentences above the advisory policy range but
within the statutory maximum. See United States v. Whitelaw, 580 F.3d 256,
265 (5th Cir. 2009). Thus, Carter has failed to demonstrate error, plain or
otherwise. See Miller, 634 F.3d at 843. Accordingly, the judgment of the district
court is AFFIRMED.
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