USA v. McFadden

Filing 920070312

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 12, 2007 Charles R. Fulbruge III Clerk No. 05-51527 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KEVIN MCFADDEN, Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 5:00-CR-204-4 Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges. PER CURIAM:* Kevin McFadden appeals the fifty-six-month sentence he received after his supervise release was revoked. He contends

that, pursuant to United States v. Booker, 543 U.S. 220 (2005), sentences imposed upon revocation of supervised release are

reviewed under the reasonableness standard.

Further, he argues

that the sentence imposed was unreasonable because it substantially exceeded the guidelines advisory range and the district court's

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

reasons for imposing the sentence were insufficient insofar as they did not comport with 18 U.S.C. § 3553(a). This court need not decide the appropriate standard of review for a sentence imposed upon revocation of supervised release in the wake of Booker because McFadden has not shown that his sentence was either unreasonable or plainly unreasonable. See

United States v. Hinson, 429 F.3d 114, 120 (5th Cir. 2005), cert. denied, 126 S. Ct. 1804 (2006). McFadden's sentence, while in

excess of the recommended range, was within the statutory maximum sentence that the district court could have imposed. review of the record demonstrates that the Further, a court

district

considered the relevant sentencing factors. Smith, 440 F.3d 704, 707 (5th Cir. 2006).

See United States v.

Therefore, the sentence

was neither unreasonable nor plainly unreasonable. Accordingly, the district court's judgment is AFFIRMED.

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