United States v. Cantrell ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 6, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
06-10674
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH COLE CANTRELL,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Texas, Fort Worth
No. 4:06-cr-00045-A
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Joseph Cole Cantrell challenges the twenty-three month
sentence imposed after the revocation of his supervised release.
Cantrell argues that the district court’s failure to articulate its
reasons for selecting a sentence above the advisory sentencing
range rendered his sentence unreasonable. Finding Cantrell has not
demonstrated error, plain or otherwise, we AFFIRM.
*
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this opinion should not be published and is not precedent except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.
I. BACKGROUND
Cantrell pleaded guilty to possession of a firearm by a
convicted felon and was sentenced to 60 months of imprisonment and
three years of supervised release. He began serving his term of
supervised release on November 28, 2005.
Cantrell was arrested on May 18, 2006, for violating the terms
of his supervised release. The government subsequently moved to
revoke, alleging that Cantrell had violated the terms of his
supervised release by: (1) using and possessing methamphetamine;
(2) failing to report as instructed by his probation officer; (3)
failing to participate in a drug aftercare program by missing urine
collection and counseling sessions; and (4) failing to comply with
home confinement conditions by not answering his telephone and
removing his leg monitor. In the Supervised Release Violation
Report, the probation officer determined that Cantrell’s statutory
maximum sentence was 24 months of imprisonment and that his
advisory guidelines sentence range was 8-14 months of imprisonment.
At the revocation hearing, Cantrell admitted to violating the
terms of his supervised release by using and possessing
methamphetamine and failing to participate in the drug aftercare
program. The district court found that the remaining charges were
also true and revoked Cantrell’s supervised release. The district
court sentenced Cantrell to 23 months of imprisonment and 13 months
of supervised release without any explanation of the reasons for
the sentence imposed. The written judgment revoking Cantrell’s
2
supervised release stated that the district court “considered all
factors set forth in 18 U.S.C. § 3553(a).” Cantrell appeals.
II. ANALYSIS
Cantrell challenges the sentence imposed after revocation of
his supervised release. Cantrell contends that the district court
erred in sentencing him above the range suggested by the applicable
policy statement in light of the court’s failure to expressly
consider the advisory range and articulate findings to justify the
sentence imposed. Cantrell urges this Court to review the sentence
for reasonableness.1
Prior to United States v. Booker, 543 U.S. 220 (2005), we
reviewed a sentence imposed after revocation of supervised release
to determine whether it was “in violation of the law or plainly
unreasonable.” United States v. Mathena, 23 F.3d 87, 89 (5th Cir.
1994). Subsequent to Booker, we have recognized that there is a
circuit split regarding whether Booker changed the standard of
review for revocation sentences from “plainly unreasonable” to
reasonableness. United States v. Jones, __ F.3d __, Nos. 06-30535
& 06-30563, 2007 WL 1098433, *7 (5th Cir. April 13, 2007). We
further recognized that other courts of appeals found the two
1
The government contends that this Court does not have
jurisdiction over the appeal because Cantrell failed to argue that
the sentence is plainly unreasonable. This contention is without
merit. Cantrell explicitly states that the standard of review is
either reasonableness or plainly unreasonable and urges this Court
to adopt reasonableness as the standard. The motion to dismiss
for lack of jurisdiction is denied.
3
standards functionally equivalent. Id. Nonetheless, we did not
reach the issue because the appellant had not preserved the
objection and thus it was “subject only to plain error review on
appeal.” Id. at *7. Here, because Cantrell is precluded from
obtaining relief in any event, we will assume solely for the
purposes of this appeal that we would ultimately choose to follow
the circuits that have reviewed post-Booker revocation sentences
for reasonableness.2
At the revocation hearing, Cantrell urged the district court
to sentence him within the advisory range. Such a “generalized
request” does not provide a district court the “opportunity to
clarify its reasoning or correct any potential errors in its
understanding of the law at sentencing, and its efforts to reach a
correct judgment could be nullified on appeal.” United States v.
Hernandez-Martinez, __ F.3d __, No. 06-40271, 2007 WL 1140327, *2
(5th Cir. April 18, 2007).
Additionally, Cantrell asserts that the court did not state
that it considered the advisory sentencing range. Cantrell admits
that at the hearing he “specifically argued for the district court
to follow the advisory imprisonment range of 8-14 months and argued
2
However, it should be noted that this Court has
indicated—though not held—that “[t]he Fourth Circuit persuasively
reasons that § 3742(a)(4), which authorizes the ‘plainly
unreasonable’ standard for revocation sentences, was not
invalidated by Booker.” Hernandez-Martinez, 2007 WL 1140327 at *3
(citing United States v. Crudup, 461 F.3d 433, 437 (4th Cir.
2006)).
4
that a sentence within that range was the presumptively reasonable
sentence.” In its judgment of revocation and sentence, the
district court expressly stated that it had considered the argument
of counsel. Thus, the record indicates that the court considered
the advisory range.
Cantrell also argues that his sentence is not reasonable
because the district court failed to articulate on the record its
reasons for deviating from the advisory sentencing range. Cantrell
failed to make this particular objection, thus depriving the
district court of an opportunity to remedy any error. We therefore
review this contention for plain error. To demonstrate plain
error, Cantrell must show there is: (1) error; (2) that is plain;
(3) that affects substantial rights; and (4) that the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Jones, 2007 WL 1098433 at *7.
Prior to Booker, this Court had made clear that when imposing
a revocation sentence, “[i]mplicit consideration of the § 3553
factors is sufficient.” United States v. Teran, 98 F.3d 831, 836
(5th Cir. 1996) (citing United States v. Whitebird, 55 F.3d 1007,
1010 (5th Cir. 1995)). Because this Court has not yet required
district courts to expressly state their reasons for selecting a
revocation sentence, any such error could not now be plain.
Moreover, the Second Circuit, which reviews post-Booker
revocation sentences for reasonableness, does not require explicit
5
consideration of matters relevant to sentencing. United States v.
Fleming, 397 F.3d 95, 100 (2d Cir. 2005). The Second Circuit
explained that:
[i]n this context, we continue to believe that no
specific verbal formulations should be prescribed to
demonstrate the adequate discharge of the duty to
“consider” matters relevant to sentencing. As long as
the judge is aware of both the statutory requirements and
the sentencing range or ranges that are arguable
applicable, and nothing in the record indicates
misunderstanding about such materials or misperception
about their relevance, we will accept that the requisite
consideration has occurred.
Id.; but see United States v. Miqbel, 444 F.3d 273 (9th Cir. 2006)
(vacating revocation sentence because the district court failed to
state specific reasons for the particular sentence imposed).
In the instant case, the judgment provided that “the court
considered all factors set forth in 18 U.S.C. § 3553(a).” Such a
statement satisfies the requirement of implicit consideration of
the statutory factors. It is undisputed that Cantrell’s sentence,
although above the advisory sentence suggested in the applicable
policy statement, is below the statutory maximum. Cantrell has not
shouldered his burden of demonstrating plain error.
The district court’s judgment is AFFIRMED. The motion to
dismiss for lack of jurisdiction is DENIED.
6