United States v. Smith

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 2, 2007
No. 06-50686 Charles R. Fulbruge III
Summary Calendar Clerk
United States of America
Plaintiff-Appellee
v.
Alvis Colin Smith
Defendant-Appellant
Appeal from the United States United States District Court,
Western District of Texas, Waco Division
W-02-CR-074(01)
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
PER CURIAM:*
Alvis Colin Smith appeals the consecutive sentences imposed upon
revocation of his supervised release. The release followed his convictions for
making false and misleading statements, securities fraud (count one) and bank
fraud (count two). Smith argues that the district court (1) abused its discretion
by revoking his supervised release when the Government had not shown 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 06-50686
release violation by a preponderance of the evidence; (2) erred by imposing
consecutive sentences; and (3) erred by not properly considering the sentencing
factors set forth in 18 U.S.C. § 3553(a). We affirm.
In its petition for revocation, the Government alleged Smith violated two
conditions of supervised release. At the revocation hearing, Smith pleaded true
to violation number two, which included that he violated 18 U.S.C. § 1001 by
making material false statements to the probation officer. Smith does not
challenge on appeal the district court’s revocation of supervised release on the
ground alleged by the Government in violation two.1 Therefore, Smith has not
shown that the district court abused its discretion in revoking his supervised
release because the district court was required to revoke his supervised release
for either violation.2 See United States v. McCormick, 54 F.3d 214, 219 & 219 n.3
(5th Cir. 1995) (upholding the district court’s revocation of the defendant’s
supervised release without reference to the other grounds of error asserted when
appellant did not challenge the district court’s conclusion that he violated a
particular condition of release and an adequate basis for the revocation existed).
The district court may impose any sentence that falls within the
appropriate statutory maximum term of imprisonment allowed for the
revocation sentence. 18 U.S.C. § 3583(a). But the district court is also directed
to consider the factors enumerated in 18 U.S.C. § 3553(a) and the non-binding
1
Smith only challenges that the Government did not prove violation one, that he
committed mail and wire fraud, by a preponderance of the evidence.
2
See U.S.S.G. § 7B1.3(a)(1) (“Upon a finding of a Grade A or Grade B violation, the
court shall revoke probation or supervised release.”); Both of Smith’s violations were “Grade
B” violations because they were offenses punishable by a term of imprisonment exceeding one
year. U.S.S.G. § 7B1.1; see also 18 U.S.C. § 1001 (material false statements); 18 U.S.C. §§
1341, 1343 (mail and wire fraud). Even if making material false statements was a Grade C
violation, as Smith argues, the district court was within its discretion to revoke supervised
release. U.S.S.G. § 7B1.3(a)(2).
2
No. 06-50686
policy statements found in Chapter Seven of the Sentencing Guidelines. United
States v. Mathena, 23 F.3d 87, 90 (5th Cir. 1994).
In the event of revocation of supervised release, Smith was subject to a
statutory maximum two-year sentence for count one, a Class C felony,3 and a
maximum three-year sentence for count two,4 a Class B felony.5 Under the
advisory guidelines, a four-to-ten-month sentence is recommended for Grade B
violations of the terms of supervised release.6 See U.S.S.G. § 7B1.4(a). The
district court imposed a two-year sentence for count one and a three-year
sentence for count two, to be served consecutively. Smith argues the district
court never stated its reasons for departing from the guidelines and imposing the
statutory-maximum sentences.7 No advisory guidelines range was set forth in
the petition to revoke, and the sentencing guidelines were not addressed by the
district court or the parties at the revocation hearing or in the order of
3
See 15 U.S.C. §§ 78j(b) & 78ff; 18 U.S.C. § 3559(a)(3) (stating that an offense for which
the maximum prison term is less than 25 years but ten or more years is a Class C felony).
4
See 18 U.S.C. § 3583(e)(3).
5
See 18 U.S.C. § 1344; 18 U.S.C. § 3559(a)(2) (stating that an offense for which
maximum prison term is 25 years or more is a Class B felony).
6
Recommended sentence durations in the advisory guidelines for violations of the terms
of supervised release are based on the severity of the violation, not the severity of the original
offense. This sentence duration is for those defendants, such as Smith, whose criminal-history
score is I.
7
See 18 U.S.C. § 3553(c) (requiring courts to state their reasons for departing from the
guidelines).
3
No. 06-50686
revocation.8 Therefore, we review for plain error. United States v. Jones, 484
F.3d 783, 791-92 (5th Cir. 2007).9
A district court’s failure to consider the Sentencing Commission’s policy
statements applicable to violations of supervised release when it revoked
defendant’s supervised release and imposed a sentence outside the guidelines
range, but within the statutory range, is not plain error. See United States v.
Montez, 952 F.2d 854, 860 (5th Cir. 1992). Here, the district court imposed the
statutory-maximum sentences allowed by 18 U.S.C. § 3583(e). Thus, Smith
cannot demonstrate reversible plain error regarding the reasonableness of his
consecutive two- and three-year sentences. See Jones, 484 F.3d at 792.
Furthermore, the district court has the discretionary authority to impose
consecutive sentences upon revocation of a supervised release. United States v.
Gonzalez, 250 F.3d 923, 926 (5th Cir. 2001); see also 18 U.S.C. § 3584(a).
Accordingly, the district court’s judgment is AFFIRMED.
8
The district court did find that the “ends of justice and the best interests of the public
and of the defendant will not be served by continuing said defendant upon supervised release.”
9
In Jones, this court acknowledged a split among the circuits as to whether revocation
sentences are reviewed under the “plainly unreasonable” standard or the post-Booker
reasonableness standard, but declined to decide which applied, instead reviewing for plain
error when the defendant made no objection to his revocation sentence in the district court.
4