USA v. Tony Lam

Filing

UNPUBLISHED OPINION FILED. [09-51176 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 12/21/2010 for Appellant Tony Lam [09-51176]

USA v. Tony Lam

Case: 09-51176 Document: 00511307227 Page: 1 Date Filed: 11/30/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51176 S u m m a r y Calendar November 30, 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. T O N Y LAM, 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. 5:09-CR-810-1

B e fo r e JOLLY, GARZA and STEWART, Circuit Judges. P E R CURIAM:* T o n y Lam appeals the 15-month sentence he received on revocation of his s u p e r v is e d release, following his guilty plea conviction for possession with intent t o distribute 500 grams or more of cocaine. Lam argues that the sentence im p o s e d on revocation was unreasonable because it was imposed to run c o n s e c u t iv e l y to the 80-month sentence imposed for the underlying conviction a n d that the court abused its discretion in denying his request to impose a c o n c u r r e n t sentence. Lam contends that the district court failed to state its
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-51176 Document: 00511307227 Page: 2 Date Filed: 11/30/2010 No. 09-51176 r e a s o n s for imposing a consecutive sentence and that the failure to state such r e a s o n s evinced a failure to consider the 18 U.S.C. § 3553(a) factors. We have yet to address whether sentences imposed upon revocation of s u p e r v is e d release are to be reviewed under the "unreasonableness" standard of U n ite d States v. Booker, 540 U.S. 220 (2005). Prior to Booker, we applied a " p l a i n ly unreasonable" standard. See United States v. Hinson, 429 F.3d 114, 1 1 9 ­ 2 0 (5th Cir. 2005). We need not decide the correct standard today because L a m 's sentence is appropriate under either standard. See id. at 120. To the e x t e n t that Lam challenges the district court's failure to provides reasons for im p o s in g a consecutive sentence, plain error review is applicable because Lam d id not object in the district court on this ground. See United States v.

M o n d r a g o n -S a n tia g o , 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2 0 0 9 ). " T h e decision to impose a consecutive . . . sentence upon revocation of s u p e r v is e d release is committed to the sound discretion of the district court." United States v. Cotroneo, 89 F.3d 510, 512 (5th Cir. 1996). The district court's d e c is io n to run the revocation sentence consecutive to the sentence on the u n d e r ly in g charge was authorized by statute and is preferred under the g u id e lin e s policy statements. See 18 U.S.C. § 3584; U.S.S.G. § 7B1.3(f) &

c o m m en t. (n.4.). Additionally, the sentencing transcript reflects that the district cou rt considered the § 3553(a) factors when imposing Lam's revocation sentence. Although the district court did not expressly identify its reasons for imposing a c o n s e c u t iv e sentence, any error in failing to explain that choice does not warrant r e lie f under plain error review because Lam cannot show that any error had an e ffe c t on the outcome of the sentencing proceedings. See Mondragon-Santiago, 5 6 4 F.3d at 361; see also United States v. Whitelaw, 580 F.3d 256, 261-65 (5th C ir . 2009).

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Case: 09-51176 Document: 00511307227 Page: 3 Date Filed: 11/30/2010 No. 09-51176 A c c o r d in g ly , Lam's revocation sentence satisfies the "plainly

u n r e a s o n a b le " and Booker "unreasonableness" standards. See Hinson, 429 F.3d a t 120. A F F IR M E D .

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