United States v. Penny

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 30, 2007
Charles R. Fulbruge III
No. 06-10530 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLIE PENNY,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
No. 4:06-CR-47-ALL
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Carlie Penny appeals the sentence of 24 months in prison and
12 months of supervised release imposed following revocation of his
term of supervised release. The district court also imposed cer-
tain conditions of supervised release related to sex offenders but
did not require that Penny register as a sex offender. Penny ar-
gues that the sentence is unreasonable or plainly unreasonable be-
cause it exceeds the advisory guideline range and was imposed with-
out the court’s issuing a detailed statement of reasons.
*
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opinion should not be published and is not precedent except under the limited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.
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(e)(3). The sentence im-
posed in Penny’s case, though in excess of the range indicated by
the policy statement, is within the statutory maximum term of im-
prisonment that the district court could have imposed. See id.Penny has not shown that his sentence was unreasonable or plainly
unreasonable in length. See United States v. Hinson, 429 F.3d 114,
119-20 (5th Cir. 2005), cert. denied, 126 S. Ct. 1804 (2006).
Furthermore, the court explicitly stated that it had consid-
ered the advisory guideline range and found it to be inadequate.
The court imposed the 24-month sentence to give Penny time to par-
ticipate in a residential drug treatment program. The need for
medical care or other correctional treatment is one of the factors
a district court must consider under 18 U.S.C. § 3553(a). The rec-
ord demonstrates that the court considered the relevant sentencing
factors and articulated sufficient reasons to support the sentence.
See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005).
Penny contends the district court abused its discretion in im-
posing the special conditions of supervised release relating to sex
offenders. He argues that the court erred in finding that he had
committed a sex offense and that the conditions related to sex of-
fenders were overbroad and not reasonably related to any of the
statutory sentencing goals of § 3553. We review the imposition of
2
discretionary conditions of supervised release for abuse of discre-
tion. United States v. Ferguson, 369 F.3d 847, 852 (5th Cir.
2004). “A district court abuses its discretion if it bases its de-
cision on an error of law or a clearly erroneous assessment of the
evidence.” United States v. Castillo, 430 F.3d 230, 238 (5th Cir.
2005) (internal quotation marks and citation omitted).
The district court’s determination that Penny had previously
committed a sex offense “is plausible in light of the record read
as a whole.” See United States v. Lopez-Urbina, 434 F.3d 750,
766-67 (5th Cir.), cert. denied, 126 S. Ct. 672 (2005). Therefore,
we “may not reverse” that finding even if we might “have weighed
the evidence differently.” See United States v. Charon, 442 F.3d
881, 891 (5th Cir.), cert. denied, 127 S. Ct. 260 (2006). The spe-
cial conditions of supervised release are not overbroad and are
reasonably related to the sentencing goals of § 3553. See
§ 3583(d)(1); see also United States v. Prochner, 417 F.3d 54, 58-
64 & n.7 (1st Cir. 2005).
AFFIRMED.
3