United States v. Calhoun , 288 F. App'x 968 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 15, 2008
No. 07-51349
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
YANCY CALHOUN
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:07-CR-526-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Yancy Calhoun appeals his sentence following the district court’s
revocation of his thirteen concurrent terms of supervised release. We hold that
Calhoun’s sentence was not unreasonable, and therefore we AFFIRM the district
court.
In 1994, Calhoun pleaded guilty in the United States District Court for the
District of Massachusetts to a twenty-five-count indictment, including thirteen
drug offenses and twelve unlawful-use-of-communication-facility offenses.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-51349
Calhoun was sentenced to thirteen concurrent terms of 188 months’
imprisonment on all drug counts, to be followed by concurrent supervised release
terms of five years on five of the drug counts, and four years on eight of the drug
counts. After being released from prison, Calhoun violated the terms of his
supervised release. Jurisdiction was properly transferred to and accepted by the
United States District Court for the Western District of Texas. The district court
revoked Calhoun’s supervised release, and sentenced him to thirteen consecutive
terms of 2.3 months’ imprisonment (thirty months total) and fifty-seven months’
supervised release.
On appeal, Calhoun contends that his total sentence, including
imprisonment and supervised release, was unreasonable because it overstated
the seriousness of his supervised-release violations, and it failed to account for
the “positive strides he had made.” Calhoun also contends that the district court
did not refer to any of the sentencing factors in 18 U.S.C. § 3553(a) (2006) when
pronouncing his sentence. We will address in turn each of Calhoun’s arguments.
Before United States v. Booker, 543 U.S. 220 (2005), this court would
uphold a sentence imposed after revocation of supervised release “‘unless it [was]
in violation of the law or plainly unreasonable.’” United States v. Hinson, 429
F.3d 114, 119-20 (5th Cir. 2005) (quoting United States v. Gonzalez, 250 F.3d
923, 925 (5th Cir. 2001)). In Booker, the Supreme Court directed courts of
appeals to “review sentencing decisions for unreasonableness.” Booker, 543 U.S.
at 264. Because Calhoun’s sentence passes muster under either standard, we
need not decide which standard of review governs sentences imposed upon
revocation of supervised release. See Hinson, 429 F.3d at 119-20.
Calhoun first argues that his total prison sentence of thirty months is
unreasonable. We disagree. Each of the thirteen 2.3-month sentences Calhoun
received was below the advisory sentencing guidelines range.1 See 18 U.S.C. §
1
When the Massachusetts district court sentenced Calhoun, it reduced Calhoun’s
criminal history category from IV to II. Even if we assume Calhoun’s criminal history category
2
No. 07-51349
3583(e) (2006); U.S. SENTENCING GUIDELINES MANUAL § 7B1.4 (2007). Moreover,
the district court had authority to impose consecutive terms of imprisonment
after it revoked the concurrent terms of Calhoun’s supervised release. See 18
U.S.C. § 3584(a) (2006); Gonzalez, 250 F.3d at 926-27. Accordingly, we hold that
Calhoun’s total sentence of thirty months’ imprisonment was not unreasonable.
Calhoun next challenges his sentence of fifty-seven months’ supervised
release. Under 18 U.S.C. § 3583(e)(3) (1988), a district court may
revoke a term of supervised release and require the person to serve
in prison all or part of the term of supervised release without credit
for time previously served on postrelease supervision, if it finds by
a preponderance of the evidence that the person violated a condition
of supervised release . . . .2
In Johnson v. United States, 529 U.S. 694 (2000), the Supreme Court held that
18 U.S.C. § 3583(e)(3) (1988) authorized district courts to reimpose supervised
release. Johnson, 529 U.S. at 704, 713.3 Thus, the district court did not act
unreasonably by revoking Calhoun’s sentence and reimposing supervised release
for a term of fifty-seven months.
is category II, the guidelines recommend a term of imprisonment of four to ten months on each
count. The lowest sentence in that range is greater than the 2.3-month sentence Calhoun
received on each count.
2
The provision that now governs supervised release following revocation, 18 U.S.C. §
3583(h) (2006), requires that the reimposed term of supervised release “not exceed the term
of supervised release authorized by statute for the offense that resulted in the original term
of supervised release, less any term of imprisonment that was imposed upon revocation.” §
3583(h). Calhoun’s statute of conviction authorized a maximum of sixty months’ supervised
release. Calhoun contends that after sentencing him to a total of thirty months’ imprisonment,
the district court should have sentenced him to no more than thirty months’ supervised release.
The Government argues that because each individual count carried a prison term of only 2.3
months, the district court properly imposed fifty-seven months’ supervised release. However,
section 3583(h) “applies only to cases in which [the] initial offense occurred after the effective
date of [subsection (h)], September 13, 1994.” Johnson v. United States, 529 U.S. 694, 702
(2000). Where the initial offense occurred before September 13, 1994, 18 U.S.C. § 3583(e)(3)
(1988) governs. Calhoun pleaded guilty to all of his initial offenses on March 22, 1994.
Accordingly, section 3583(e)(3) applies to the present case, and we need not decide which party
properly calculated Calhoun’s supervised release under § 3583(h). See id. at 702.
3
We have held it is not unconstitutional to apply Johnson retroactively. United States
v. Martinez, 496 F.3d 387, 390 (5th Cir. 2007).
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No. 07-51349
Finally, Calhoun argues that the district court failed to articulate
expressly the § 3553(a) factors when it imposed his sentence. After finding that
a defendant has violated a condition of supervised release, the district court
must consider the § 3553(a) factors in determining the sentence to be imposed.
Gonzalez, 250 F.3d at 929. We presume that “‘district courts know the
applicable law and apply it correctly,’” and we believe that “‘Congress never
intended . . . for sentencing to become a hyper-technical exercise devoid of
common sense.’” Id. at 930 (quoting United States v. Johnson, 138 F.3d 115, 119
(4th Cir. 1998)). Thus, “‘[i]mplicit consideration of the § 3553[(a)] factors is
sufficient.’” Id. (quoting United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996)).
After reviewing the sentencing transcript, we hold that the district court
implicitly considered the § 3553(a) factors in sentencing Calhoun. The district
court heard the well-articulated arguments of both Calhoun and the Government
before imposing Calhoun’s sentence. See Gonzalez, 250 F.3d at 930. Specifically,
the court heard arguments concerning Calhoun’s criminal history, his prompt
return to drug crime following his initial prison term, his lack of respect for the
law, the availability of prison drug-abuse programs and how they could benefit
Calhoun, and the need to adequately deter Calhoun from drug crime in the
future. See § 3553(a). Operating under the presumption that the district court
knows and correctly applies the law, and absent a contrary indication in the
record, we find that the district court sufficiently considered and correctly
applied the § 3553(a) factors in sentencing Calhoun.
We conclude that Calhoun’s total sentence of thirty months’ imprisonment
followed by fifty-seven months’ supervised release was not unreasonable, and
that the district court implicitly considered the § 3553(a) factors when it imposed
Calhoun’s sentence.
AFFIRMED.
4