USA v. Michelle Maxwell

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USA v. Michelle Maxwell

Doc. 0

Case: 09-51044

Document: 00511176079

Page: 1

Date Filed: 07/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51044 S u m m a r y Calendar July 16, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. M I C H E L L E JANETT MAXWELL, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 7:02:CR-107-1

B e fo r e BENAVIDES, PRADO and SOUTHWICK, Circuit Judges. PER CURIAM:* M ic h e lle Janett Maxwell appeals the sentence imposed following the r e v o c a t io n of her supervised release. The district court sentenced Maxwell to a n in e - m o n t h term of imprisonment, to be followed by an 18-month term of s u p e r v is e d release. Maxwell was sentenced to home confinement during the fir s t nine months of her term of supervised release, and the district court also o r d e r e d electronic monitoring during that nine-month period.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-51044

Document: 00511176079 Page: 2 No. 09-51044

Date Filed: 07/16/2010

M a x w e ll argues that the sentence imposed by the district court was u n r e a s o n a b le because it included a period of home confinement. She contends t h a t the sentence of home confinement is a greater restriction on her liberty than is reasonably necessary to address the goals of sentencing. B e c a u s e Maxwell did not object to the sentence in the district court, we r e v ie w for plain error only. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5 t h Cir. 2009). To show plain error, the appellant must show a forfeited error t h a t is clear or obvious and that affects her substantial rights. Puckett v. United S ta te s , 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this c o u r t has the discretion to correct the error but only if it seriously affects the fa ir n e s s , integrity, or public reputation of judicial proceedings. Id. T h e district court may impose any sentence that falls within the a p p r o p r ia te statutory maximum term of imprisonment allowed for the r e v o c a t io n of a sentence. 18 U.S.C. § 3583(e)(3). In so doing, the district court is directed to consider the factors enumerated in 18 U.S.C. § 3553(a), including t h e non-binding policy statements found in Chapter Seven of the Sentencing G u id e lin e s . United States v. Mathena, 23 F.3d 87, 90-93 (5th Cir. 1994). Under t h e statutory framework governing revocation and punishment for violating a c o n d itio n of supervised release, a district court may (1) impose the maximum s e n te n c e of incarceration allowed under the revocation statutes; (2) "order home d e t e n t io n as an alternative to incarceration"; or (3) order an incarceration term le s s than the maximum allowable term and reimpose a term of supervised r e le a s e . United States v. Ferguson, 369 F.3d 847, 850-51 (5th Cir. 2004)

(in t e r n a l quotation marks omitted). Pursuant to § 3553(a)(1), the district court is to consider "the history and characteristics of the defendant" in determining t h e sentence to be imposed. T h e record shows that Maxwell got into legal difficulty following her p r e s e n c e at an establishment known as Rack Daddy's Club at 3:40 a.m. Additionally, Maxwell violated the terms of her supervised release by failing to 2

Case: 09-51044

Document: 00511176079 Page: 3 No. 09-51044

Date Filed: 07/16/2010

r e p o r t to her probation officer and by failing to notify the probation officer 10 d a y s prior to any change in residency or employment. In view of the foregoing, t h e district court's determination to sentence Maxwell to a period of home c o n fin e m e n t , in conjunction with electronic monitoring, was not unreasonable, a n d Maxwell has not shown plain error. See Whitelaw, 580 F.3d at 265.

T h e judgment of the district court is AFFIRMED.

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