United States v. Underwood

Case: 21-30518 Document: 00516577930 Page: 1 Date Filed: 12/14/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-30518
consolidated with
FILED
December 14, 2022
No. 21-30528
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Lee E. Underwood, Jr.,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 3:04-CR-30059-1
USDC No. 3:21-CR-16-1
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-30518 Document: 00516577930 Page: 2 Date Filed: 12/14/2022
No. 21-30518
c/w No. 21-30528
Lee E. Underwood, Jr., began a five-year term of supervised release in
October 2019. In September 2020, the district court granted the probation
officer’s request to modify the conditions of Underwood’s supervision to
require his participation in a drug treatment program. Underwood failed to
participate in the program and was arrested on a revocation warrant. Agents
subsequently executed a search warrant at his residence and found
methamphetamine, marijuana, heroin, fentanyl, and several firearms.
Underwood pleaded guilty to possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii),
and possession of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c). Before he was sentenced on those charges,
Underwood’s probation officer petitioned the district court to revoke his
supervision based in part on his commission of new crimes.
At a joint revocation and sentencing hearing, Underwood pleaded true
to the revocation allegations. The district court found that he had committed
the violations, revoked his supervised release, and sentenced him to 35
months in prison. As for the new offenses, the district court imposed an
upward departure under U.S.S.G. § 4A1.3 and sentenced Underwood above
the guidelines range to 145 months in prison on the drug charge and 60
months in prison on the firearms charge. The district court ordered each
term of imprisonment, including the 35-month revocation sentence, to run
consecutively, for a total of 240 months. Underwood appeals both
judgments, and the appeals have been consolidated.
Underwood argues on appeal that his probation officer had an
obligation to seek to revoke his supervised release earlier and that, if the
probation officer had done so, Underwood would not have had the
opportunity to commit new violations of the law. He asserts that this failure
constitutes a violation of his constitutional right to due process. Because
Underwood did not preserve this claim by raising it at the district court, we
2
Case: 21-30518 Document: 00516577930 Page: 3 Date Filed: 12/14/2022
No. 21-30518
c/w No. 21-30528
review for plain error only. See Puckett v. United States, 556 U.S. 129, 135
(2009). To show plain error, Underwood must show a forfeited error that is
clear or obvious and that affects his substantial rights. See id. “An error is
not plain under current law if a defendant’s theory requires the extension of
precedent.” United States v. Lucas, 849 F.3d 638, 645 (5th Cir. 2017)
(internal quotation marks and citation omitted). Underwood’s theory is
without precedent and accordingly does not survive plain error review. See
id.Underwood also challenges the imposition of the upward departure
under § 4A1.3 as substantively unreasonable. Preserved claims of sentencing
error are reviewed for abuse of discretion. Gall v. United States, 552 U.S. 38,
51 (2007). In the context of a § 4A1.3 departure, reasonableness review
requires us to evaluate both “the district court’s decision to depart upwardly
and the extent of that departure for abuse of discretion.” United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (internal quotation marks
and citation omitted).
Here, the district court’s stated reasons for assessing the upward
departure advance the objectives set forth in 18 U.S.C. § 3553(a)(2) and are
justified by the facts of the case. See Zuniga-Peralta, 442 F.3d at 347. In
particular, Underwood was a repeat offender who had shown a dangerous
propensity to commit similar crimes, even while on supervised release. The
district court likewise did not err in determining the extent of the departure,
which was only 20 months, or 16%, above the advisory guidelines maximum
for the drug charge. Finally, nothing in the record suggests that the district
court abused its discretion in considering or balancing the § 3553(a)
sentencing factors. See Gall, 552 U.S. at 51.
AFFIRMED.
3