United States v. Thomas , 222 F. App'x 432 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 15, 2007
Charles R. Fulbruge III
Clerk
No. 06-10785
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL THOMAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-96-ALL
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Before DeMOSS, STEWART and PRADO, Circuit Judges
PER CURIAM:*
Michael Thomas appeals the sentence imposed following the
revocation of his supervised release. He contends that pursuant
to United States v. Mares, 402 F.3d 511, 519 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005), sentences, including those
imposed upon revocation of supervised release, are reviewed
under the reasonableness standard. Further, he argues that the
sentence imposed was unreasonable because it substantially
exceeded the recommended range and the district court failed to
articulate fact specific reasons for imposing the sentence.
*
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this opinion should not be published and is not precedent except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. 06-10785
-2-
The Government has moved for dismissal of the appeal or for
summary affirmance on the ground that this court lacks
jurisdiction to consider Thomas’s appeal under 18 U.S.C.
§ 3742(a)(4). Because Thomas cannot prevail on the merits of his
appeal, we pretermit consideration of the jurisdictional issue.
See United States v. Weathersby, 958 F.2d 65, 66 (5th Cir. 1992).
The Government’s motion for dismissal of the appeal or for
summary affirmance is therefore denied. The Government’s
alternative request for an extension of time to file an appellate
brief is also denied as unnecessary.
This court need not decide the appropriate standard of
review for a sentence imposed upon revocation of supervised
release in the wake of United States v. Booker, 543 U.S. 220(2005), because Thomas has not shown that his sentence was either
unreasonable or plainly unreasonable. See United States v.
Hinson, 429 F.3d 114, 120 (5th Cir. 2005), cert. denied, 126 S.
Ct. 1804 (2006). Thomas was subject to a five-year statutory
maximum sentence upon revocation of his supervised release on
Counts One and Two, and a two-year statutory maximum sentence on
Count Four. See 18 U.S.C. §§ 924(a)(2), 3559(a)(1) and (3),
3583(e)(3); 21 U.S.C. §§ 841(b)(1)(A)(iii), 846. The Sentencing
Guidelines recommended a prison term of between 7 and 13 months
based on Thomas’s Grade C violations and his criminal history
category of V. See U.S.S.G. § 7B1.4(a). Therefore, the
consecutive nine-month terms of imprisonment on each count
No. 06-10785
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followed by concurrent 24-month terms of supervised release on
Counts One and Two were within the recommended range and neither
unreasonable nor plainly unreasonable. See Hinson, 429 F.3d at
120; United States v. Gonzalez, 250 F.3d 923, 925-29 (5th Cir.
2001).
AFFIRMED; MOTION FOR DISMISSAL OR SUMMARY AFFIRMANCE DENIED;
ALTERNATIVE REQUEST FOR EXTENSION OF TIME DENIED AS UNNECESSARY.