United States v. Michael Tarwater

Case: 16-10013 Document: 00513667755 Page: 1 Date Filed: 09/07/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10013 FILED
Summary Calendar September 7, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL LYNN TARWATER,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-259-1
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Michael Lynn Tarwater challenges the procedural reasonableness of his
18-month revocation sentence. Tarwater admitted violating several conditions
of his supervised release by failing to report to the probation officer, possessing
a controlled substance, and committing at least eight new state law violations
since his second term of supervision commenced. He faced a policy statement
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10013
sentencing range of 21 to 27 months, although the statutory maximum prison
term was 18 months.
Because Tarwater did not object to the procedural reasonableness of his
sentence, we review for plain error. See United States v. Whitelaw, 580 F.3d
256, 259-60 (5th Cir. 2009); see also Puckett v. United States, 556 U.S. 129, 135
(2009). According to Tarwater, the district court plainly erred by failing to
address his nonfrivolous argument for a lesser sentence, i.e., that his original
80-month sentence was erroneously overlong in light of Johnson v. United
States, 135 S. Ct. 2551 (2015). The record, however, reflects that the district
court listened to his arguments for leniency but explained that the 18-month
sentence was necessary in view of Tarwater’s history and characteristics and
the need for deterrence, two of the relevant sentencing factors under 18 U.S.C.
§ 3553(a). See United States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011).
Although “the judge might have said more” by explicitly stating “that he had
heard and considered the evidence and argument” and found that Tarwater’s
Johnson argument did not outweigh his significant criminal record and history
of recidivism, the “context and the record make clear that this, or similar,
reasoning underlies the judge’s conclusion.” Rita v. United States, 551 U.S.
338, 359 (2007). “Where a matter is as conceptually simple as in the case at
hand and the record makes clear that the sentencing judge considered the
evidence and arguments,” more extensive reasons are not required. Id.Tarwater has not shown a clear or obvious error. See Whitelaw, 580 F.3d at
261.
Neither were Tarwater’s substantial rights affected. The record of the
sentencing proceedings in this case allows us to conduct a meaningful appellate
review. See Gall v. United States, 552 U.S. 38, 50 (2007). Nothing in the record
suggests that a more thorough explanation would have resulted in a shorter
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No. 16-10013
sentence. See Whitelaw, 580 F.3d at 264-65. Finally, Tarwater’s argument,
raised only to preserve it for further review, that Whitelaw was wrongly
decided is unavailing, as we may not overrule Whitelaw absent an en banc or
superseding Supreme Court decision. See United States v. Lipscomb, 299 F.3d
303, 313 n.34 (5th Cir. 2002).
The judgment of the district court is AFFIRMED.
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