USA v. Marceiva Steven

Filing

UNPUBLISHED OPINION FILED. [17-50030 Affirmed] Judge: JLW, Judge: JLD, Judge: LHS. Mandate pull date is 09/14/2017 for Appellant Marceiva Allen Stevens [17-50030]

Case: 17-50030

Document: 00514130976

Page: 1

Date Filed: 08/24/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-50030
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
August 24, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCEIVA ALLEN STEVENS,

Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:06-CR-179-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Marceiva Allen Stevens appeals the 24-month, above-guidelines
sentence imposed following the revocation of his supervised release. For the
first time on appeal, he argues that his sentence was procedurally
unreasonable because the district court failed to state sufficient reasons in
support. He further argues, also for the first time, that his sentence 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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Document: 00514130976

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No. 17-50030
substantively unreasonable because it was greater than necessary to achieve
the sentencing goals of 18 U.S.C. § 3553(a).
Because Stevens did not object to either the procedural or substantive
unreasonableness of the sentence imposed in the district court, review is for
plain error only. 1 See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir.
2009). To establish plain error, he must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion
to correct the error but will do so only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
If a district court imposes a revocation sentence that falls outside of the
range recommended by the policy statements, it must provide “some
explanation” for its decision.

Whitelaw, 580 F.3d at 261-62.

It should

articulate reasons that are sufficient to “satisfy the appellate court that [it] has
considered the parties’ arguments and has a reasoned basis for exercising [its]
legal decision making authority.” Rita v. United States, 551 U.S. 338, 356-57
(2007) (quoted in Whitelaw, 580 F.3d at 261).
The district court referenced the witness testimony and the allegations
in the revocation pleadings to the effect that Stevens, rather than merely
consuming alcohol, had engaged in dangerous behavior presenting a public
hazard, “whether intentional or not intentional,” and it found the guidelines
range to be inadequate to address the circumstances of Stevens’s violation.
The district court’s stated reason, though brief, was adequate in light of the

Stevens concedes that, because he failed to object at the time sentence was imposed,
his arguments are subject to plain-error review but seeks to preserve for possible further
review the argument that a contemporaneous objection is not required in order to preserve
such arguments for appeal.
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No. 17-50030
revocation record as a whole and did not give rise to any clear or obvious
procedural error. See Rita, 551 U.S. at 356-57.
Stevens’s substantive unreasonableness challenge essentially amounts
to a disagreement with the district court's balancing of the § 3553(a) sentencing
factors, which we will not reweigh. See United States v. Warren, 720 F.3d 321,
332 & n.2 (5th Cir. 2013). Moreover, we have “routinely affirmed revocation
sentences exceeding the advisory range, even where the sentence equals the
statutory maximum.” Id. at 332 (quotation marks and citation omitted); see
Whitelaw, 580 F.3d at 259, 265.
Stevens has failed to show that his revocation sentence is plainly
unreasonable or plainly erroneous.

See Warren, 720 F.3d at 326, 332-33.

Accordingly, the district court’s judgment is AFFIRMED.

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