USA v. Larry Bigelow

Filing

UNPUBLISHED OPINION FILED. [14-30561 Affirmed ] Judge: CDK , Judge: EGJ , Judge: CH Mandate pull date is 05/04/2015 for Appellant Larry James Bigelow [14-30561]

Case: 14-30561

Document: 00513003334

Page: 1

Date Filed: 04/13/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30561
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
April 13, 2015

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
LARRY JAMES BIGELOW,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:05-CR-20133-3
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Larry James Bigelow was convicted of distribution of cocaine base; he
was sentenced to 96 months of imprisonment and four years of supervised
release. Since starting his term of supervised release, Bigelow has admitted
to multiple violations of the conditions imposed. Ultimately, the district court
revoked supervised release and sentenced Bigelow to 36 months of
imprisonment. See 18 U.S.C. § 3583(e)(3).

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 14-30561

Document: 00513003334

Page: 2

Date Filed: 04/13/2015

No. 14-30561
Because there is no indication that the district court departed or varied
upward from a lesser guidelines sentencing range, Bigelow argues that the
district court found that he had committed a “Grade A” violation. Although it
was alleged that Bigelow’s arrest for distribution of drugs constituted a Grade
A violation, he asserts that he only admitted that he had been arrested on that
charge and that the Government did not submit any evidence showing that he
committed the offense.

Therefore, Bigelow argues that the district court

procedurally erred in finding that he committed a Grade A violation.
Bigelow concedes that he did not object in the district court on the
procedural error grounds he raises on appeal and, therefore, plain error review
applies. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
Bigelow must show a clear or obvious error that affected his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). We have discretion to
correct such an error, but will do so only if it seriously affects the fairness,
integrity, or public reputation of the proceedings. See id.
The revocation judgment lists Bigelow’s arrest for distribution of
hydrocodone as one of his violations of the terms of his release, a Grade A
violation. However, Bigelow admitted only that he was arrested on this charge
and the Government did not present any evidence in support of the allegation.
The district court sentenced Bigelow to 36 months of imprisonment, which was
within advisory guidelines range for a Grade A violation but above the range
of 21 to 27 months for the Grade B violations Bigelow did admit. Thus, we
assume that the district court committed clear or obvious error that affected
Bigelow’s substantial rights. See United States v. Mudekunye, 646 F.3d 281,
289 (5th Cir. 2011).
However, a finding that an error affected the defendant’s substantial
rights does not automatically require that we exercise our discretion to correct

2

Case: 14-30561

Document: 00513003334

Page: 3

Date Filed: 04/13/2015

No. 14-30561
that error. See United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir.
2012). Despite the many opportunities he received from the district court,
Bigelow’s repeated violations demonstrate that he was unable or unwilling to
abide by the terms of his supervision. In addition, the record shows that the
probation officer first reported a possible violation to the district court less than
six months after Bigelow began his supervised release term. See United States
v. Davis, 602 F.3d 643, 650-51 (5th Cir. 2010). Further, the 36-month sentence
did not exceed the available statutory maximum. Therefore, we conclude that
affirming the district court’s sentence would not seriously affect the fairness,
integrity or public reputation of judicial proceedings. See id.
AFFIRMED.

3