United States v. Damm

Case: 22-10824 Document: 00516734013 Page: 1 Date Filed: 05/02/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10824
Summary Calendar FILED
____________ May 2, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Gregory P. Damm,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-4-1
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Gregory P. Damm challenges the five-year additional term of
supervised release imposed upon revocation of his supervised release. See 18
U.S.C. § 3583(h). He contends that the district court erroneously believed
that the five-year term was the statutorily mandated minimum and that the
error affected his substantial rights and, therefore, was not harmless. See
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10824 Document: 00516734013 Page: 2 Date Filed: 05/02/2023
No. 22-10824
United States v. Campos, 922 F.3d 686, 688-89 (5th Cir. 2019); United States
v. English, 400 F.3d 273, 276 (5th Cir. 2005).
A district court commits clear error when it determines that a
defendant is subject to a mandatory minimum term of supervised release
upon revocation. Campos, 922 F.3d at 688-89; see § 3583(h). In this case, the
district court stated, “I’m constrained by the law and have to give you five
years, 60 months, additional supervised release time.” In imposing the
sentence, the district court again noted that the five-year term was “required
by statute.” When defense counsel objected and pointed out that § 3583(h)
“gives the Court discretion to impose any term that it sees fit,” the district
court responded, “Then I’ll correct myself. I felt that it was reasonable and
necessary to give him five years.” After defense counsel reiterated the
objection to the five-year term of supervised release, the district court
provided reasons for imposing the sentence that were based on the nature of
the underlying offense, Damm’s history and characteristics, and the need to
protect the public. See 18 U.S.C. § 3553(a). The district court’s comments
reflect that defense counsel’s objections made it aware that it could impose
fewer than five years of supervised release but that it believed the
circumstances of the case warranted the sentence. Cf. United States v.
Garcia-Ortiz, 310 F.3d 792, 795 (5th Cir. 2002). Thus, there was no error.
In any event, any error was harmless because the record demonstrates
that there was no “reasonable probability of a different outcome absent the
error.” Campos, 922 F.3d at 689 (internal quotation marks and citation
omitted); see English, 400 F.3d at 276. The district court clearly stated that
it would impose a five-year term of supervised release even though the
sentence was not mandatory, emphasizing that it believed a five-year
supervised release term was appropriate based on the nature of the
underlying offense, Damm’s history and characteristics, and the need to
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Case: 22-10824 Document: 00516734013 Page: 3 Date Filed: 05/02/2023
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protect the public from further criminal behavior by Damm. See § 3553(a);
English, 400 F.3d at 276.
Given the foregoing, the judgment of the district court is
AFFIRMED.
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