United States v. Richard Schunior , 382 F. App'x 403 ( 2010 )

Case: 09-50933 Document: 00511150004 Page: 1 Date Filed: 06/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 22, 2010
No. 09-50933
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICHARD SCHUNIOR,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:07-CR-95-1
Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Richard Schunior appeals as unreasonable the 24-month sentence imposed
following revocation of his supervised release. He contends: the district court
gave too much weight to his violation of the terms of his supervised release (by
testing positive for cocaine on six separate occasions) and not enough weight to
his steady employment and stable family life; and, the court relied on a faulty
factual premise that he had not complied with the terms of his supervised
release (no-compliance finding).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-50933 Document: 00511150004 Page: 2 Date Filed: 06/22/2010
No. 09-50933
Schunior challenged his 24-month sentence as unreasonable in district
court, preserving the issue for appeal. He did not object, however, to the district
court’s no-compliance finding; therefore, review of that claim is only for plain
error (inter alia, a clear or obvious error that affected Schunior’s substantial
rights). See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.),
cert. denied, 130 S. Ct. 192 (2009); United States v. Whitelaw, 580 F.3d 256, 259
(5th Cir. 2009).
Prior to United States v. Booker, 543 U.S. 220 (2005), a sentence imposed
after revocation of supervised release was upheld unless it violated the law or
was plainly unreasonable. United States v. Stiefel, 207 F.3d 256, 259 (5th Cir.
2000); see 18 U.S.C. § 3742(a)(1), (4). Although we have not stated the proper
standard of review to be applied to revocation sentences post-Booker, we need
not do so now because Schunior’s sentence passes muster under either standard
of review. See United States v. McKinney, 520 F.3d 425, 428 (5th Cir. 2008).
Schunior’s sentence exceeded the advisory guidelines range of three to
nine months, but it did not exceed the statutory maximum sentence of 60
months that could have been imposed upon the revocation of his supervised
release. Furthermore, the record reflects that the district court considered the
advisory guidelines range, the 18 U.S.C. § 3553(a) sentencing factors, and the
contentions of counsel. Accordingly, Schunior has not shown that his sentence
was either unreasonable or plainly unreasonable. See United States v. Mathena,
23 F.3d 87, 90-93 (5th Cir. 1994).
Nor has he shown that the district court plainly erred when it stated that
Schunior had not complied with the terms of his release. The sentencing
colloquy, when read in context and in its entirety, reflects: the district court was
focused on the repeated violations of the condition prohibiting drug use; and the
district court based its sentencing decision on Schunior’s violations of that
condition.
AFFIRMED.
2