USA v. Francis Comb

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UNPUBLISHED OPINION FILED. [10-10175 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 12/21/2010 for Appellant Francis Harold Combs; granting motion for summary affirmance filed by Appellee USA [6598255-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6598255-3] [10-10175]

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USA v. Francis Comb ase: 10-10175 C Document: 00511307335 Page: 1 Date Filed: 11/30/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-10175 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. F R A N C I S HAROLD COMBS, 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. 4:09-CR-81-1 B e fo r e REAVLEY, DENNIS, CLEMENT, Circuit Judges. P E R CURIAM:* F r a n c is Harold Combs appeals the 24-month sentence imposed following t h e revocation of his supervised release. He complains that the district court im p r o p e r ly considered the factors of 18 U.S.C. 3553(a)(2)(A) in imposing his s e n te n c e because sub-section (a)(2)(A) is not among the provisions of 3553 that 1 8 U.S.C. 3583(e) directs courts to weigh in fashioning a revocation sentence. Because Combs' general objection "to the sentence being unreasonable" failed to a d e q u a t e ly apprise the district court of the particular claim he now pursues on 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 10-10175 Document: 00511307335 Page: 2 Date Filed: 11/30/2010 No. 10-10175 a p p e a l, we review Combs' sentence for plain error. See United States v. D u n n ig a n , 555 F.3d 501, 506 (5th Cir. 2009). To the extent Combs claims that t h e district court's written Judgment of Revocation and Sentence reflects a basis fo r the district court's determination that is different than the district court's r e a s o n s announced at sentencing, our review of the record reveals no such in c o n s is te n c y . Therefore, Combs had adequate opportunity to "consider, c o m m e n t on, and object to" the reasonableness of the district court's sentence. See United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). A t the time Combs was sentenced, this circuit's law did not clearly e s t a b lis h that a district judge could not consider the 3553(a)(2)(A) factors in r e a c h in g a decision on a revocation sentence, and decisions of the other federal c ir c u it s on this issue remain at odds. See United States v. Rodriguez, 369 F. A p p 'x 608 (5th Cir. 2010); compare United States v. Miqbel, 444 F.3d 1173, 1182 (9 t h Cir. 2006), with United States v. Lewis, 498 F.3d 393, 399 (6th Cir. 2007). Therefore, Combs cannot show that the district court plainly erred in considering t h e factors of 3553(a)(2)(A). See United States v. Salinas, 480 F.3d 750, 759 (2 0 0 7 ) ("Because this circuit's law remains unsettled and the other federal c ir c u it s have reached divergent conclusions on this issue, . . . Salinas cannot s a t is fy the second prong of the plain error test--that the error be clear under e x is t in g law."). Accordingly, the Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. G o v e r n m e n t 's alternative motion for an extension of time is DENIED. The 2

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