United States v. Michael Ward

Case: 13-11178 Document: 00512706600 Page: 1 Date Filed: 07/22/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-11178 FILED
Summary Calendar July 22, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL CHRISTOPHER WARD,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-56-1
Before DeMOSS, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Michael Christopher Ward appeals the 18-month term of imprisonment
imposed upon the second revocation of his supervised release. He argues that
the district court erred by grounding his sentence in a desire to impose “just
punishment for the offense.” See United States v. Miller, 634 F.3d 841, 843-44
(5th Cir. 2011); 18 U.S.C. § 3553(a)(2)(A).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-11178
Because Ward did not object to the revocation sentence, it is considered
for plain error only. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir.
2009). To establish plain error, he must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes this showing, this court has the discretion
to correct the error but will do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks and citation omitted). Ward has not made the showing necessary to
receive relief under this “difficult” standard. See id.
The record does not support Ward’s argument that the district court’s
choice of sentence was driven by a desire for that sentence to meet the
§ 3553(a)(2)(A) goal of “just punishment for the offense.” To be clear, the
district court never used the specific phrase “just punishment.”
The word “punishment” was used several times by both the district court
and defense counsel. When these remarks are considered in context, it appears
the court simply used this word to speak of the penalty that Ward was to
receive for violating the terms of his supervised release. “[T]he goal of
revocation is to punish a defendant for violating the terms of the supervised
release.” Miller, 634 F.3d at 843. This interpretation of the remarks is
supported by the district court’s written judgment which stated: “the court
considered all relevant factors set forth in 18 U.S.C. § 3553(a) that are proper
for consideration in a revocation context.” It is also supported by the district
court’s following statement at the revocation hearing: “I think a sentence of the
kind I’ve described is one that would adequately and appropriately address all
the factors the Court should consider in a revocation context under 18 United
States Code Section 3553(a).” But even assuming there is a lingering
ambiguity regarding the district court’s use of the word “punishment,” this
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No. 13-11178
court has stated: “Because [the defendant] did not object at sentencing and give
the court an opportunity to clarify itself, we are unable to conclude that the
court based his sentence on an impermissible factor.” United States v.
Hernandez-Martinez, 485 F.3d 270, 274 (5th Cir. 2007). In this case, Ward has
not shown plain error in connection with the district court’s references to
“punishment” at sentencing.
The judgment of the district court is AFFIRMED.
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