United States v. Barry Robinson

Case: 10-30124 Document: 00511373197 Page: 1 Date Filed: 02/04/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 4, 2011
No. 10-30124
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BARRY ROBINSON,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:05-CR-223-4
Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Barry Robinson appeals from the judgment of revocation of his supervised
release and the sentence imposed upon revocation. He was arrested twice by
local authorities and charged with the state offenses of attempted theft and
monetary instrument abuse. He contends that the district court improperly
relied on a ground not alleged in the rule to revoke, namely, his lying to the
authorities about the episodes underlying his arrests and state charges, thus
depriving him of notice of the grounds for revocation. He argues that the district
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30124 Document: 00511373197 Page: 2 Date Filed: 02/04/2011
No. 10-30124
court made no finding as to whether he committed the attempted theft offense,
though he acknowledges that the district court found that he committed abuse
of a monetary instrument.
Robinson did not raise his arguments in the district court. Our review is
under the plain error standard. See United States v. Magwood, 445 F.3d 826,
828 (5th Cir. 2006).
Robinson’s contentions hinge on his construction of the district court’s
remarks at his revocation hearing. The district court’s commentary about
Robinson’s lying did not suggest that the revocation was based on lying; rather,
the commentary was relevant to whether Robinson was guilty of the state
offenses. See United States v. Villareal, 324 F.3d 319, 325 (5th Cir. 2003).
Moreover, the district court commented on both of the state offenses sufficiently
to make an implicit finding of guilt as to both state offenses, after hearing the
testimony of a police officer and a deputy sheriff and after reading the probation
officer’s report on Robinson’s arrests.
Robinson suggests for the first time in his reply brief that the dismissal of
the state charges against him means that the district court relied on his lying
as the reason for the revocation of his supervised release. This court generally
will not consider issues raised for the first time in a reply brief. United States
v. Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010). We do not consider Robinson’s
contention.
Robinson has failed to demonstrate that the district court relied on lying
as a separate ground for revocation or that the district court made no finding as
to the attempted theft charge in Jefferson Parish. He has failed to demonstrate
any error, plain or otherwise. See Magwood, 445 F.3d at 828.
AFFIRMED.
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