United States v. Kates

Case: 21-10828 Document: 00516223463 Page: 1 Date Filed: 03/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 3, 2022
No. 21-10828 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
David Earl Kates,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:97-CR-42-1
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
David Earl Kates, federal prisoner # 30428-077, was convicted by a
jury of possessing with the intent to distribute cocaine base and his sentence
included a term of supervised release. Now that his supervised release has
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10828 Document: 00516223463 Page: 2 Date Filed: 03/03/2022
No. 21-10828
been revoked, he contends that the within-guidelines 11-month revocation
sentence is substantively unreasonable.
Kates specifically concedes that the revocation sentence was not
illegal and was not the result of an error in the guidelines calculations.
Instead, he argues that the current sentence is substantively unreasonable
because the district court did not consider that the total sentence imposed for
the 1997 offense was much greater than if the offense were committed today
because he would no longer be considered a career offender.
We review Kates’s revocation sentence to determine whether it is
“plainly unreasonable.” United States v. Miller, 634 F.3d 841, 843 (5th
Cir. 2011). We review the substantive reasonableness of the sentence for an
abuse of discretion, examining the totality of the circumstances. United
States v. Fuentes, 906 F.3d 322, 325 (5th Cir. 2018). “A revocation sentence
is substantively unreasonable if it (1) does not account for a factor that should
have received significant weight, (2) gives significant weight to an irrelevant
or improper factor, or (3) represents a clear error of judgment in balancing
the sentencing factors.” United States v. Badgett, 957 F.3d 536, 541 (5th Cir.)
(internal quotation marks and citation omitted), cert. denied, 141 S. Ct. 827(2020). “If a sentence is unreasonable, then we consider whether the error
was obvious under existing law.” Miller, 634 F.3d at 843.
Kates fails to make such a showing and fails to show that his revocation
sentence is plainly unreasonable.
AFFIRMED.
2