USA v. Cold McGrew

Filing

UNPUBLISHED OPINION FILED. [13-11105 Affirmed ] Judge: JLW , Judge: CH , Judge: SAH. Mandate pull date is 08/18/2014 for Appellant Cold Contrell McGrew [13-11105]

Case: 13-11105

Document: 00512713178

Page: 1

Date Filed: 07/28/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-11105
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
July 28, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
COLD CONTRELL MCGREW,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CR-175-17
Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *

Cold Contrell McGrew appeals the 24-month prison sentence imposed
following the revocation of a supervised-release term that was originally part
of a drug-trafficking sentence. The sentence was above the advisory guideline
range but below the five-year statutory maximum sentence.
We review McGrew’s claims for plain error because he did not object to
the sentence in the district court. See United States v. Whitelaw, 580 F.3d 256,

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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259-60 (5th Cir. 2009). To show plain error, he must show a forfeited error
that is clear and obvious and that was reasonably likely to have affected his
sentence. See id.; United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010) . If
he makes those showings, we have the discretion to correct the error “if it
seriously affected the fairness, integrity, or public reputation of the judicial
proceeding.” Whitelaw, 580 F.3d at 260.
McGrew contends that the sentencing court gave inadequate reasons for
the sentence. Even if the district court’s limited explanation of an aboveguideline sentence was a clear or obvious error, it cannot be said to have
affected McGrew’s substantial rights, because adequate reasons for the
sentence are apparent from the record. See Whitelaw, 580 F.3d at 262-64. The
court listened to counsels’ arguments and McGrew’s allocution, and it
implicitly accepted the Government’s view that McGrew’s prompt resumption
of illegal drug use warranted a prison sentence above the guideline range, but
with no additional supervised release. Likewise, the district court simply
rejected McGrew’s argument that he deserved leniency because he is a drug
addict.

In addition, McGrew does not demonstrate that any further

explanation of the sentence would have resulted in a lower sentence or a
within-guideline sentence. See Davis, 602 F.3d at 647. In the context of this
record, the limited explanation of the sentence was not plain error. United
States v. Bonilla, 524 F.3d 647, 657 (5th Cir. 2008)(“In this case, examining the
district court’s statement at sentencing in the context of the full sentencing
hearing confirms that the court’s reasons for the non-guideline sentence it
imposed were minimally sufficient.”).
McGrew also disagrees with the sentencing court’s refusal to give him a
more lenient sentence on account of his being a drug addict, a “characteristic”
under 18 U.S.C. § 3553(a)(1).

His mere disagreement with the court’s

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assessment of the § 3553(a) factors does not establish that the sentence was an
abuse of discretion or unreasonable, much less that it was plainly erroneous.
See Gall v. United States, 552 U.S. 38, 51 (2007) (holding that a reviewing
court “must give due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance” above the guideline
range). Moreover, this court has routinely affirmed above-guideline revocation
sentences like McGrew’s that do not exceed the statutory maximum. See
United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013) (collecting cases).
McGrew’s 24-month sentence was less than half of the maximum sentence of
five years. The sentence was not plainly erroneous.
The judgment is AFFIRMED.

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