United States v. Tony Breedlove , 582 F. App'x 454 ( 2014 )

Case: 14-10094 Document: 00512780426 Page: 1 Date Filed: 09/24/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10094
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 24, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
TONY JAY BREEDLOVE,
Defendant - Appellant
Cons. w/No 14-10096
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
TONY JAY BREEDLOVE, also known as Anthony Love Breedlove,
Defendant - Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 5:10-CR-26-1
USDC No. 5:13-CR-110-1
Case: 14-10094 Document: 00512780426 Page: 2 Date Filed: 09/24/2014
No. 14-10094
c/w No. 14-10096
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
In these consolidated appeals, Tony Jay Breedlove appeals the district
court’s revoking his terms of supervised release and imposing consecutive
sentences of 14 months’ imprisonment. Having failed to raise the following
issue in district court, Breedlove contends the court committed reversible plain
error by failing to offer an adequate explanation for his sentences, claiming an
explanation was required because he made a nonfrivolous argument for a lower
sentence. He claims such reversible plain error because: the reasons for
rejecting his arguments for leniency do not appear on the record; and there was
a reasonable probability that a fuller consideration of his arguments for
leniency would have led to the imposition of lower sentences. He maintains
such error should be corrected because it affected the fairness, integrity, and
public reputation of judicial proceedings.
Alternatively, Breedlove contends no objections to the sentences were
necessary to obtain plenary review because he articulated an argument for
lesser sentences, thus alerting the court to the need for an explanation. He
acknowledges our court held otherwise in United States v. Whitelaw, 580 F.3d
256, 263 (5th Cir. 2009), but claims Whitelaw was wrongly decided and should
be overruled. In the alternative, he raises the issue to preserve it for further
possible review.
Of course, one panel of this court may not overrule another, absent an
intervening change in law, Supreme Court decision, or an en-banc opinion of
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
2
Case: 14-10094 Document: 00512780426 Page: 3 Date Filed: 09/24/2014
No. 14-10094
c/w No. 14-10096
this court. E.g., Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th
Cir. 2008). As noted, this issue is preserved for further possible review.
As also noted, this court has held a defendant must raise a claim of
procedural error as to a revocation sentence to preserve that issue for review.
Whitelaw, 580 F.3d at 259. Because Breedlove did not object to the sentences
imposed on revocation, review is only for plain error. E.g., id. Under that
standard, Breedlove must show a forfeited plain (clear or obvious) error that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he does so, we have the discretion to correct the error, but should do
so only if it seriously affects the fairness, integrity, or public reputation of the
proceedings. Id.
“[W]e do not require district courts to state explicitly the reasons for
selecting a revocation sentence; thus, any error (to which no objection was
made) cannot rise to the level of plain error.” United States v. Sanchez-Valle,
554 F. App’x 272, 274 (5th Cir. 2014). Implicit consideration of the 18 U.S.C.
§ 3553(a) sentencing factors is sufficient in a revocation proceeding. United
States v. Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001); United States v. Teran,
98 F.3d 831, 836 (5th Cir. 1996); see, e.g., Whitelaw, 580 F.3d at 264. Moreover,
the district court stated the sentences “address[] the issues of adequate
deterrence and protection of the public”, which are two § 3553(a) factors that
are permissible considerations in a revocation proceeding. See 18 U.S.C.
§ 3583(e)(3).
AFFIRMED.
3