USA v. Frederick Robertson

Filing

UNPUBLISHED OPINION FILED. [10-30135 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 11/17/2010 for Appellant Frederick Robertson [10-30135]

USA v. Frederick Robertson10-30135 Case:

Document: 00511276169 Page: 1 Date Filed: 10/27/2010

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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 . 10-30135 S u m m a r y Calendar October 27, 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 , versu s F R E D E R I C K ROBERTSON, 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 Middle District of Louisiana N o . 3:09-CR-111-1

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:*

F r e d e r ick Robertson appeals the 24-month sentence imposed following the r e v o c a t io n of his term of supervised release. He argues that the sentence, which
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30135 Document: 00511276169 Page: 2 Date Filed: 10/27/2010 No. 10-30135 e x c e e d s the guideline range of 8-14 months, is procedurally and substantively u n r e a s o n a b le . T h is court has not yet determined what standard of review applies to sent e n c e s imposed on revocation of supervised release in the wake of United States v . Booker, 543 U.S. 220 (2005). United States v. Jones, 484 F.3d 783, 791-92 (5th C ir . 2007). Because, however, Robertson did not object to the sentence in the d is t r ic t court, and because he failed to raise there the specific claims of procedura l error that he argues on appeal, review is for plain error only. See id.; United S ta te s v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To show plain error, Robertson must first show an error that is clear or obv io u s and that affects his substantial rights. See United States v. Baker, 538 F .3 d 324, 332 (5th Cir. 2008). Robertson contends that the district court erred in basing its sentence on allegations that, in separate incidents, he assaulted his d a u g h t e r and his girlfriend with a firearm and that the court erred by failing p r o p e r ly to explain its upward variance. Contrary to Robertson's argument, the a lle g a t io n s in question were not unsubstantiated. The district court's finding that Robertson assaulted his daughter and his g ir lfr ie n d with a handgun was based on the probation officer's testimony at the r e v o c a t io n hearing. To the extent that the probation officer's testimony was b a s e d on statements made by the victims, it may have been hearsay, but the c o u r t committed no procedural error by considering such evidence in determinin g Robertson's sentence. See United States v. West, 58 F.3d 133, 138 (5th Cir. 1 9 9 5 ). The testimony of Robertson's mother contradicted the probation officer's t e s t im o n y regarding the altercation between Robertson and his daughter, but t h e court implicitly resolved the conflict in favor of the probation officer's testim o n y by finding that Robertson had committed the alleged violation. Because t h e factual determination was plausible in light of the entire record, it was not c le a r ly erroneous. See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996). Robertson appears to contend that the district court's failure to explain its 2

Case: 10-30135 Document: 00511276169 Page: 3 Date Filed: 10/27/2010 No. 10-30135 u p w a r d variance from the guideline range, in terms of the sentencing factors of 1 8 U.S.C. § 3553(a), renders his sentence unreasonable. But the court was not r e q u ir e d to mention the § 3553(a) factors explicitly when pronouncing sentence. See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). The court's consideration of the statutory factors, specifically § 3553(a)(1), t h e nature of the offense and the history and characteristics of the defendant, is im p lic it in the court's discussion of the assaults, the lengthy criminal history, a n d the previous revocation of a term of supervised release. Robertson has not s h o w n error, plain or otherwise, with respect to the procedural aspects of his s e n te n cin g . R o b e r t s o n 's argument that the sentence is substantively unreasonable is la r g e ly premised on his contention that it was error for the court to base its upw a r d variance on the allegations regarding his assaults. As the previous discuss io n illustrates, there was no reversible procedural error in the factual findings a s to these allegations or in the court's consideration of the assaults in determinin g the sentence. On revocation of supervised release, the district court may impose any sent e n c e that falls within the statutory maximum term. See Whitelaw, 580 F.3d at 2 6 4 . Revocation sentences exceeding the guideline range but not exceeding the s t a t u t o r y maximum have been upheld as a matter of routine against challenges t h a t the sentences were substantively unreasonable. See id. at 265. Because the s e n te n c e does not exceed the statutory maximum, it is not plain error. See id. A F F IR M E D .

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