USA v. Terry Crain

Filing

UNPUBLISHED OPINION FILED. [10-10013 Affirmed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 09/28/2010 for Appellant Terry Crain [10-10013]

USA v. Terry Crain

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Case: 10-10013

Document: 00511225563

Page: 1

Date Filed: 09/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10013 S u m m a r y Calendar September 7, 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 E R R Y CRAIN, also known as Maurice Clayton, 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 Northern District of Texas U S D C No. 1:92-CR-38-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* T e r r y Crain appeals the sentence imposed following the revocation of his s u p e r v is e d release subsequent to his conviction for conspiracy to possess with in t e n t to distribute 50 grams or more of cocaine base and possession of 50 grams o r more of cocaine base with intent to distribute. The district court sentenced C r a in to 24 months of imprisonment, 13 months more than the high end of the a d v is o r y guidelines range.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10013

Document: 00511225563 Page: 2 No. 10-10013

Date Filed: 09/07/2010

C r a in argues that the district court abused its discretion procedurally by s e n te n c in g him to 24 months of imprisonment so that he could participate in the B u r e a u of Prisons' (BOP's) residential drug abuse program when his sentence m a d e him ineligible for participation in that program. A letter from the BOP t h a t Crain has filed indicates that Crain is ineligible for participation in the r e s id e n t ia l drug abuse program because he has less than 24 months remaining o n his sentence. He maintains that the district court's reliance upon its incorrect b e lie f that he would be eligible for the residential drug abuse program was p r o c e d u r a l error. C r a in also argues that the sentence was substantively unreasonable. He m a in t a in s that the district court did not account for, or give proper weight to, his h is t o r y and characteristics, specifically the evidence showing that he was a hard w o r k e r and that he had made significant attempts at rehabilitation. He

c o n t e n d s that the district court did not account for, or give proper weight to, the s e n te n c in g factor of providing deterrence and protecting the public. He

m a in t a in s that his supervised release violations did not show he was dangerous b e c a u s e they did not relate to his original offenses, because he served only one d a y in state custody on the state offenses that led to his revocation, and because t h e victim of his state offenses, his wife, remains committed to him. B e c a u s e Crain did not object to the sentence in the district court, we r e v ie w for plain error only. See United States v. Jones, 484 F.3d 783, 792 (5th C ir . 2007). To show plain error, Crain must show a forfeited error that is clear o r obvious and that affects his substantial rights. See Puckett v. United States, 1 2 9 S. Ct. 1423, 1429 (2009). If he makes such a showing, we have the discretion t o correct the error but only if it seriously affects the fairness, integrity, or public r e p u t a tio n of judicial proceedings. See id. A s s u m in g arguendo that the district court erred by basing the sentence on it s incorrect belief that Crain would be eligible for participation in the BOP's r e s id e n t ia l drug abuse program and that the error was clear or obvious, Crain 2

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Document: 00511225563 Page: 3 No. 10-10013

Date Filed: 09/07/2010

s t ill has not shown plain error because he has not shown that the error affected h is substantial rights. The district court stated that the sentence it imposed w o u ld allow Crain to participate in the BOP's drug program, and Crain has s h o w n that he is not eligible to participate in the BOP's residential drug abuse p r o g r a m because his sentence is too short. Thus, if the district court did base t h e sentence upon Crain's eligibility for participation in the BOP's residential d r u g abuse program, the logical conclusion is that the district court would have im p o s e d a longer sentence if it knew that a longer sentence was required to m a k e Crain eligible for participation. Accordingly, at best for Crain, it is unclear w h e t h e r the error helped or harmed him, and Crain has not shown that the error a ffe c t e d his substantial rights. See United States v. Mares, 402 F.3d 511, 521 (5 t h Cir. 2005). W h ile the 24-month sentence exceeded the advisory guidelines range, it w a s well within the statutory maximum sentence of 60 months of imprisonment. See 18 U.S.C. § 3583(e)(3); U.S.S.G. 7B1.4(a). The district court considered C r a in 's argument for leniency and then imposed the sentence. Given these c ir c u m s t a n c e s , Crain has not shown that the sentence constituted plain error. See Jones, 484 F.3d at 792-93; United States v. Whitelaw, 580 F.3d 256, 265 (5th C ir . 2009). A F F IR M E D .

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