USA v. Mark O'Neil

Filing

UNPUBLISHED OPINION FILED. [10-60249 Affirmed 10-60251 Affirmed 10-60260 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 11/24/2010 for Appellant Mark D. O'Neil [10-60249, 10-60251, 10-60260]

USA v. Mark O'Neil Case: 10-60249

Document: 00511283527 Page: 1 Date Filed: 11/03/2010

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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 . 10-60249 c /w No. 10-60251 c/w No. 10-60260 S u m m a r y Calendar November 3, 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. M A R K D. O'NEIL, D e fe n d a n t -A p p e lla n t

A p p e a ls from the United States District Court fo r the Southern District of Mississippi U S D C No. 1:10-CR-11-1 U S D C No. 1:10-CR-12-1 U S D C No. 1:10-CR-13-1

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit judges. PER CURIAM:* I n these consolidated appeals, Mark D. O'Neil appeals the three c o n s e c u t iv e 20-month sentences imposed following the revocation of his terms o f supervised release. He argues that the district court erred when it found that h e had used cocaine on two separate occasions in October 2009; he also argues t h a t the district court erred by finding that his acknowledgment of only one use
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-60249 Document: 00511283527 Page: 2 Date Filed: 11/03/2010 No. 10-60249 c /w No. 10-60251 c/w No. 10-60260 o f cocaine on his monthly supervision report constituted the filing of a false r e p o r t . O'Neil also asserts that the district court failed to adequately explain its s e n te n c e s and that the sentences imposed represented an unreasonable d e v ia t io n from the applicable guidelines range. I f a district court finds by a preponderance of the evidence that a d e fe n d a n t has violated a condition of his supervised release, it has discretion to r e v o k e supervised release and impose a term of imprisonment. United States v. M c C o r m ic k , 54 F.3d 214, 219 (5th Cir. 1995); 18 U.S.C. § 3583(e)(3). The district c o u r t's factual findings are reviewed for clear error. A la n iz -A la n iz , 38 F.3d 788, 790 (5th Cir. 1994). A s an initial matter, we note that O'Neil admitted many of the alleged v io la t io n s and he has not appealed other violations found by the district court. These admitted and unappealed violations, particularly his admitted drug use a n d his failure to comply with drug testing requirements, are sufficient by t h e m s e lv e s to support revocation. See McCormick, 54 F.3d at 219 n.3; § 3583(g). O 'N e il does argue that the evidence was insufficient to find that he a d m it t e d using cocaine on two occasions in October 2009. Although a drug t e s t in g report from October 22, 2009, supports O'Neil's testimony that Probation O ffic e r Patrick Williams did not perform his drug testing that day, this report d o e s not directly contradict Officer Williams' testimony that O'Neil admitted d r u g use to him. Because we do not find Officer Williams' testimony incredible a s a matter of law, we will defer to the district court's finding that he was c r e d ib le . See Alaniz-Alaniz, 38 F.3d at 791. Therefore, the district court did not c le a r ly err in finding that O'Neil had used cocaine on two occasions in October 2 0 0 9 or in finding that he submitted a false monthly supervision report. O 'N e il also argues that all of his violations were "Grade C" violations and t h a t the applicable guideline sentencing range was 8 to 14 months of im p r is o n m e n t . He argues that his 20 month sentences were outside of this 2 United States v.

Case: 10-60249 Document: 00511283527 Page: 3 Date Filed: 11/03/2010 No. 10-60249 c /w No. 10-60251 c/w No. 10-60260 r a n g e , that the district court failed to adequately explain its reasons for im p o s in g non-guideline sentences, and that the extent of the variance from the 8 to 14 month guideline range was unreasonable. Because O'Neil did not object t o his sentence in the district court, our review is for plain error. See United S ta te s v. Davis, 602 F.3d 643, 646-47 (5th Cir. 2010). A ll of O'Neil's sentencing arguments are premised on his assertion that t h e district court clearly erred in finding that he had submitted a false monthly s u p e r v is i o n report. For the reasons discussed above, the district court did not c le a r ly err in making such a finding. O'Neil's submission of a false monthly s u p e r v is io n report was a "Grade B" violation, which resulted in a guideline range o f 21 to 27 months of imprisonment. See U.S.S.G. § 7B1.1(a)(2); § 7B1.4(a). Therefore, his sentencing arguments are based on the flawed premise that his s e n te n c e was an upward variance. E v e n if his sentencing arguments were considered, we would conclude that t h e district court did not plainly err. The district court provided sufficient r e a s o n s for its choice of sentences. In addition, O'Neil's sentences were less than t h e applicable statutory maximum sentences, and we have routinely upheld r e v o c a t io n sentences against substantive unreasonableness challenges if the s e n te n c e does not exceed the statutory maximum. W h ite la w , 580 F.3d 256, 265 (5th Cir. 2009). A F F IR M E D . See United States v.

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