USA v. Harvey Brown
UNPUBLISHED OPINION FILED. [14-30216 Affirmed ] Judge: ECP , Judge: PRO , Judge: JEG Mandate pull date is 02/03/2015 for Appellant Harvey J. Brown [14-30216]
Date Filed: 01/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
January 13, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA,
HARVEY J. BROWN,
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:08-CR-90
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Harvey J. Brown appeals the revocation of his supervised release and
the imposition of a within-guidelines sentence. Brown argues that the district
court committed a host of procedural errors and, additionally, that his sentence
was substantively unreasonable.
Because his general objection did not
adequately preserve his arguments for appeal, review is for plain error only.
See Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Krout,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 01/13/2015
66 F.3d 1420, 1434 (5th Cir. 1995). To show plain error, Brown must show that
the error was clear or obvious and affects his substantial rights. See Puckett,
556 U.S. at 135. If he makes such a showing, we have the discretion to correct
the error but only if it “‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” Id. (alteration in original) (quoting United
States v. Olano, 507 U.S. 725, 736 (1993)).
Despite repeatedly admitting to the use of cocaine, in addition to his
positive drug screens, Brown nevertheless contends that the district court
erroneously found that he had committed a Grade B violation.
admitted use of cocaine supports a finding that he possessed cocaine while
under supervision for purposes of a revocation under 18 U.S.C. § 3583(g).
United States v. Smith, 978 F.2d 181, 182 (5th Cir. 1992). Thus, because Brown
possessed cocaine while under supervision, the district court had ample basis
to conclude that he committed a Grade B violation. See U.S.S.G. § 7B1.1(a)(2).
Because Brown committed a Grade B violation, it became the basis for
determining the “grade of violation” for purposes of the revocation table.
§§ 7B1.1(b) and 7B1.4(a) (table). Therefore, whether the district court was
correct concerning the number of Grade C violations he committed was
irrelevant, as they played no role in the determination of the guidelines range.
Brown’s argument that the district court procedurally erred by failing to
consider the relevant 18 U.S.C. § 3553(a) factors is not supported by the record.
The district court implicitly considered the relevant § 3553(a) factors when it
stated that it had considered the Guidelines. See United States v. Gonzalez,
250 F.3d 923, 930 (5th Cir. 2001). Additionally, the statements of the district
court reflected its consideration of Brown’s history and characteristics and the
circumstances of his violations of supervised release. See § 3553(a)(1); United
States v. Kippers, 685 F.3d 491, 499 (5th Cir. 2012).
Date Filed: 01/13/2015
Insofar as Brown contends that the district court erroneously used the
§ 3553(a)(2)(A) factors in imposing a sentence, because revocation of Brown’s
supervision was mandated under § 3583(g), consideration of those factors was
not inappropriate. See United States v. Giddings, 37 F.3d 1091, 1095-97 (5th
Cir. 1994). Brown’s argument that the district court improperly considered his
need for substance abuse treatment in violation of Tapia v. United States, 131
S. Ct. 2382, 2385 (2011), is not supported by the record, as the significant
factors informing the imposition and length of his sentence did not include his
need for drug rehabilitation.
Brown further contends that the district court procedurally erred by not
adequately considering the alternatives to incarceration that he presented and
by failing to explain why it rejected them. The district court’s reasons for
imposing a sentence, however, were legally sufficient. See Rita v. United
States, 551 U.S. 338, 356 (2007); United States v. Mondragon-Santiago, 564
F.3d 357, 362 (5th Cir. 2009).
Finally, Brown argues that his within-guidelines sentence was
substantively unreasonable because the district court did not consider a wide
range of other conduct, including his compliance for the first two years of his
Brown’s within-guidelines sentence, however, is
presumptively substantively reasonable, and his argument that the district
court should have given more consideration to his periods of good behavior
amounts to nothing more than a disagreement with the district court over how
the § 3553(a) factors should have been balanced, which is insufficient to
overcome the presumption. United States v. Alvarado, 691 F.3d 592, 597 (5th
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