United States v. Charles Alexander

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 23, 2013
No. 12-50807
c/w No. 12-50814 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHARLES NEEL ALEXANDER,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:10-CR-622-1
USDC No. 1:12-CR-153-1
Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
Charles Neel Alexander appeals the sentence imposed after revocation of
his supervised release, arguing that the plainly unreasonable standard should
not apply because it is inconsistent with United States v. Booker, 543 U.S. 220(2005), and that the plain error standard should not apply because he argued for
a sentence at the bottom of the guidelines range in 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 12-50807
c/w No. 12-50814
Alternatively, he asserts that the revocation sentence is plainly unreasonable
because the district court revoked his supervised release based on the same
conduct giving rise to his new offense of conviction, his risk of recidivism is low
because he is 61 years old, and the revocation sentence was greater than
necessary to achieve the goals of sentencing set out in 18 U.S.C. § 3553(a).
Booker did not abrogate 18 U.S.C. § 3742(a)(4), and in this circuit, a
preserved challenge to a revocation sentence is reviewed under the plainly
unreasonable standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011). Because Alexander did not object to the reasonableness of the sentence
at the revocation proceeding, however, review is limited to plain error. See
United States v. Whitelaw, 580 F.3d 259, 265 (5th Cir. 2009).
Although Alexander’s 24-month revocation sentence is considerably higher
than the four to ten month guidelines policy range, we give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justified the
variance. See United States v. Kippers, 685 F.3d 491, 500 (5th Cir. 2012). The
district court exercised its discretion to order that the 24-month revocation
sentence be served consecutively to the 10-month sentence imposed for failing
to register as a sex offender conviction. See 18 U.S.C. § 3584; U.S.S.G. § 5G1.3(c)
& comment. (n.3(C)). The district court considered Alexander’s arguments and
allocution and implicitly considered his history and characteristics, including
that he fled from the residential treatment center, failed to participate in
court-ordered sex-offender treatment, and failed to obtain employment while on
supervised release. We have routinely upheld revocation sentences that exceed
the guidelines range but are within the statutory maximum. See Kippers, 685
F.3d at 498-99; Whitelaw, 580 F.3d at 265. Therefore, there was no error, plain
or otherwise. See Kippers, 685 F.3d at 500-01; Whitelaw, 580 F.3d at 265.
AFFIRMED.
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