United States v. Jimmy Naslund ( 2011 )

Case: 10-10745 Document: 00511512394 Page: 1 Date Filed: 06/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2011
No. 10-10745
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JIMMY LEE NASLUND,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:02-CR-69-1
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Jimmy Lee Naslund appeals the 24-month sentence imposed following
revocation of his supervised release. Naslund argues that the district court
emphasized his prior criminal conduct, but failed to consider the progress he had
made in transitioning back into society. Naslund points to his successful
completion of 34 months of his 36 months of supervised release, including his
completion of a substance abuse program and his having passed all of his drug
tests, as well as his maintaining a job, buying a house, and caring for the man
who had raised him, who was in failing health.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10745 Document: 00511512394 Page: 2 Date Filed: 06/17/2011
No. 10-10745
While this appeal was pending, this court held that sentences imposed
upon revocation of supervised release are reviewed under the plainly
unreasonable standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011). Under the plainly unreasonable standard, this court first evaluates
whether the district court committed procedural error before considering “‘the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.’” Id. at 843 (quoting United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008)).
Naslund does not argue that the district court committed procedural error.
Rather, he contends that the district court did not properly consider the totality
of the circumstances in imposing sentence. However, the district court listened
to the testimony at the revocation hearing, as well as the parties’ arguments,
specifically stated that it had considered the 18 U.S.C. § 3553(a) factors, and
considered the revocation policy statements in the Guidelines. The district court
found that Naslund’s conduct in drinking and driving on public roadways posed
a danger to the community, particularly in light of Naslund’s history of DWI
violations. It was not plainly unreasonable for the district court to impose a 24-
month sentence given Naslund’s relapse just prior to being released from
supervision. See United States v. Mathena, 23 F.3d 87, 93-94 (5th Cir. 1994)
(affirming statutory maximum sentence of 36 months where guidelines range for
revocation was six to 12 months); United States v. Silva, 359 F. App’x 547 (5th
Cir. 2010) (holding 24-month above guidelines sentence for revocation was not
unreasonable or plainly unreasonable where offender argued the court
considered only his need for treatment); United States v. Skelly, 328 F. App’x
939, 940 (5th Cir. 2009) (affirming 24-month sentence that exceeded 3-9 month
guidelines range where court expressed concern regarding defendant’s history
of substance abuse and the danger he posed to himself and the public).
AFFIRMED.
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