USA v. Russell Hudson
UNPUBLISHED OPINION FILED. [10-11191 Reversed & Remanded] Judge: CDK , Judge: LHS , Judge: CH Mandate pull date is 01/27/2012 for Appellant Russell A. Hudson [10-11191]
Date Filed: 01/06/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
January 6, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
RUSSELL A. HUDSON,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:89-CR-126-1
Before KING, SOUTHWICK, and HAYNES, Circuit Judges.
Russell A. Hudson appeals the district court’s judgment revoking his term
of supervised release and sentencing him to 23 months of imprisonment and an
additional supervised release term of 13 months. Hudson timely appealed.
Hudson first argues that the district court plainly erred in imposing his
sentence by considering factors identified in 18 U.S.C. § 3553(a)(2)(A), such as
the need “to provide just punishment for the offense” and its “seriousness.”
Because Hudson did not object in the district court to the court’s consideration
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 01/06/2012
of a prohibited factor in determining his sentence, we review only for plain error.
See United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir. 2007).
To show plain error, Hudson must show a forfeited error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, we have the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
After Hudson was sentenced, while the instant appeal was pending, we
decided United States v. Miller, 634 F.3d 841 (5th Cir. 2011), cert. denied, No. 1010784, 2011 WL 2148772 (Oct. 31, 2011). In Miller, we held that “it is improper
for a district court to rely on § 3553(a)(2)(A) for the modification or revocation of
a supervised release term.” 634 F.3d at 844. To the extent that the district
court relied on a § 3553(a)(2)(A) factor, such reliance was impermissible under
Our circuit has issued inconsistent cases on the subject of whether the
“plainness” of an error is judged at the time of sentencing or at the time of
appeal. Compare United States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir.
2005) (“‘Plain’ is synonymous with ‘clear’ or ‘obvious,’ and at a minimum,
contemplates an error which was clear under current law at the time of trial.”);
United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998) (same), with United
States v. Bishop, 603 F.3d 279, 281 (5th Cir.) (“We determine whether an alleged
error is plain by reference to existing law at the time of appeal.”), cert. denied,
131 S. Ct. 272 (2010); United States v. Gonzalez-Terrazas, 529 F.3d 293, 298 (5th
Cir. 2008) (“[T]he error need only be plain at the time of appellate
consideration.”); see also United States v. Gloria, No. 10-10423, 2011 WL
3966101 * 2 (5th Cir. Sept. 7, 2011)(unpublished)(concluding Miller error was
not plain because of circuit split at the time of sentencing). Accordingly, we
apply the earliest pronouncement of this determination following the Supreme
Court’s explication of the plain error factors in United States v. Olano, 507 U.S.
Date Filed: 01/06/2012
725, 734 (1993). United States v. Knowles, 29 F.3d 947 (5th Cir. 1994) (holding
that error is plain when it is plain at the time of appeal). Where “two previous
holdings or lines of precedent conflict, the earlier opinion controls and is the
binding precedent in this circuit.” United States v. Wheeler, 322 F.3d 823, 828
n.1 (5th Cir. 2003) (internal quotation marks omitted). Accordingly, we conclude
that the district court plainly erred in considering a factor under § 3553(a)(2)(A).
We conclude that this error affected Hudson’s substantial rights.
Although the district court references factors it “should consider” under 3553(a)
in pronouncing the sentence, it discussed only two facts expressly not permitted
to be considered under Miller – the seriousness of the offense and punishment.
Thus, we conclude that the error resulted in the imposition of an impermissible
sentence affecting Hudson’s rights. Finally, we conclude that it is appropriate
to exercise our discretion to correct this error.
We also review for plain error Hudson’s second argument, i.e., that the
district court erred by considering his need for rehabilitation in determining his
sentence. This argument is based on the Supreme Court’s recent decision in
Tapia v. United States, 131 S. Ct. 2382 (2011). In the wake of Tapia, however,
we have held that the limitations on the consideration of rehabilitation at issue
in Tapia do not apply in a revocation proceeding. See United States v. Breland,
647 F.3d 284, 287-90 (5th Cir. 2011). Therefore, this argument is foreclosed.
Hudson’s sentence is REVERSED, and the case is remanded for
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?