USA v. Ray Lenoir

Filing

UNPUBLISHED OPINION FILED. [16-60189 Affirmed] Judge: TMR, Judge: PRO, Judge: JWE. [16-60189]

Case: 16-60189

Document: 00513843312

Page: 1

Date Filed: 01/20/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-60189
Summary Calendar

FILED
January 20, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
RAY CHARLES LENOIR,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:98-CR-121-1
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
In 1999, Ray Charles Lenoir was convicted of possessing with the intent
to distribute cocaine base. He was sentenced to 71 months of imprisonment
and five years of supervised release. The term of imprisonment later was
reduced to 48 months under Federal Rule of Criminal Procedure 35. In 2014,
the district court revoked Lenoir’s supervised release, sentenced Lenoir to six
months of imprisonment, and imposed an additional three years of supervised

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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release. The district court revoked Lenoir’s supervised release for a second
time in 2016. It imposed a sentence of ten months of imprisonment and two
years of supervised release.

Lenoir now appeals the second revocation of

supervised release and his resulting sentence.
Lenoir did not present either of the arguments he now raises on appeal
to the district court. Accordingly, we will review the district court’s actions for
plain error only. See Puckett v. United States, 556 U.S. 129, 135 (2009); United
States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc). To prevail on
plain-error review, Lenoir must show that an error occurred, that the error was
clear or obvious, and that the error affected his substantial rights. See Puckett,
556 U.S. at 135. If Lenoir makes that 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. (internal quotation marks and
citation omitted).
First, Lenoir argues that the district court erred by failing to follow its
self-proclaimed policy not to revoke supervised release unless the government
proved that the defendant had been convicted of the new federal, state, or local
crime warranting revocation.

He asserts that the court should not have

revoked his supervised release absent proof of a conviction. Lenoir has not
shown reversible plain error. A district court may revoke a term of supervised
release upon finding, by a preponderance of the evidence, that the defendant
violated a condition of supervised release. 18 U.S.C. § 3583(e)(3); see United
States v. Jang, 574 F.3d 263, 265-67 (5th Cir. 2009). Lenoir has cited no
authority to suggest that the district court altered the statutorily applicable
standards for supervised release revocation proceedings when it expressed its
preference, in the terms of a policy, that the government show proof of a

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conviction in revocation cases based on allegations that the defendant
committed a new crime.
Also, Lenoir argues that the district court erred when it imposed his
revocation sentence without giving him an opportunity to speak or to present
information in mitigation of his sentence. Lenoir is correct that the district
court committed clear and obvious error by failing to give him an opportunity
to allocute prior to imposing his revocation sentence. See United States v.
Magwood, 445 F.3d 826, 829 (5th Cir. 2006).

Because the district court

sentenced Lenoir at the top of his revocation sentencing guidelines range, we
must presume that the error affected Lenoir’s substantial rights. See Reyna,
358 F.3d at 353. However, we decline to exercise our discretion to correct the
district court’s error. Lenoir has not identified any specific facts or arguments
he would have made at sentencing to convince the court to impose a more
lenient sentence. See Magwood, 445 F.3d at 830. Accordingly, Lenoir’s case is
one of the “limited class of cases” where the error did not seriously affect the
fairness, integrity, or public reputation of judicial proceedings before this
court. See Reyna, 358 F.3d at 352. He has not shown reversible plain error.
The judgment of the district court is AFFIRMED.

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