United States v. Gary Abernathy

Case: 17-10985 Document: 00514703756 Page: 1 Date Filed: 10/30/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10985 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
October 30, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
GARY WILLIAM ABERNATHY,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-304-1
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Gary William Abernathy appeals his 24-month revocation sentence. He
argues that he is entitled to resentencing because the district court violated
his due process rights when it imposed a revocation sentence based on
“erroneous information,” specifically the probation officer’s representation that
Abernathy had overserved his prior federal sentence by 24 months. Because
Abernathy did not object to his revocation sentence before the district court,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10985 Document: 00514703756 Page: 2 Date Filed: 10/30/2018
No. 17-10985
his present challenge is reviewed for plain error. See United States v.
Whitelaw, 580 F.3d 256, 260 (5th Cir. 2009).
The Government argues that Abernathy cannot show an effect on his
substantial rights because the district court stated in its order in aid of appeal
that it “more likely than not” would have imposed the same 24-month sentence
because “it was particularly concerned about the assault [Abernathy]
committed against his wife,” which served as the basis for revoking his
supervised release. Even though the court could not say with “absolute
certainty” that it would have imposed the same sentence had the probation
officer not provided incorrect information, the fact that the court “more likely
than not” would have imposed the same 24-month sentence precludes
Abernathy from showing a “reasonable probability” of a different outcome on
remand. See United States v. Escalante-Reyes, 689 F.3d 415, 424 (5th Cir.
2012) (en banc).
The judgment of the district court is AFFIRMED.
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