USA v. Donovan Smith

Filing

UNPUBLISHED OPINION FILED. [16-10215 Affirmed] Judge: FPB, Judge: JLD, Judge: ECP. Mandate pull date is 01/25/2017 for Appellant Donovan Smith [16-10215]

Case: 16-10215

Document: 00513820714

Page: 1

Date Filed: 01/04/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10215
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
January 4, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DONOVAN SMITH,

Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-13-1
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Donovan Smith appeals the district court’s decision to revoke his term of
supervised release.

He argues that the district court erred by failing to

consider substance abuse treatment, in lieu of incarceration, pursuant to 18
U.S.C. § 3583(d) and U.S.S.G. § 7B1.4 (n.6) (p.s.). He also argues that the
district court erred by imposing a 24-month term of imprisonment, which was

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10215

Document: 00513820714

Page: 2

Date Filed: 01/04/2017

No. 16-10215
the statutory maximum and above the guidelines range of 5 to 11 months of
imprisonment.
As Smith did not raise these arguments in the district court, review is
for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). In
addition to failing drug testing, which would implicate the § 3583(d) exception,
Smith violated the conditions of his supervised release by using and possessing
heroin, cocaine, and morphine, and by refusing to participate in substance
abuse treatment. Smith has failed to show any plain error. See, e.g., United
States v. Harper, No. 01-10623, 2002 WL 494731, at *1-2 (5th Cir. March 15,
2002) (unpublished) (affirming revocation on similar grounds); see also United
States v. Guerrero-Robledo, 565 F.3d 940, 946 (5th Cir. 2009) (“It certainly is
not plain error for the district court to rely on an unpublished opinion that is
squarely on point.”).
Additionally, the record reflects that the district court considered the
relevant statutory factors in its determination that a guidelines range sentence
would be inadequate. See § 3583(e) (setting forth appropriate § 3553(a) factors
that the district court may consider in the revocation context). Moreover,
Smith’s disagreement with the decision does not demonstrate an abuse of the
district court’s wide sentencing discretion. See United States v. Miller, 634
F.3d 841, 844 (5th Cir. 2011).
AFFIRMED.

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