United States v. Vernon Walker , 607 F. App'x 426 ( 2015 )

Case: 14-50957 Document: 00513082468 Page: 1 Date Filed: 06/17/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50957
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 17, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
VERNON TYRELL WALKER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:06-CR-187-1
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Vernon Tyrell Walker appeals the sentence imposed following the
revocation of a previously imposed term of supervised release. He first argues
that the district court procedurally erred by failing to calculate the applicable
guidelines range and by failing to consider the sentencing factors of 18 U.S.C.
§ 3553(a). As Walker concedes, because he did not object in the district court,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50957 Document: 00513082468 Page: 2 Date Filed: 06/17/2015
No. 14-50957
plain error review applies. See Puckett v. United States, 556 U.S. 129, 135
(2009).
The record on appeal does not show that the district court calculated the
guidelines range or explicitly considered the § 3553(a) factors. However, we
conclude that Walker has not shown that any error affected his substantial
rights. In his appellate brief, Walker calculated the applicable guidelines
range as 8 to 14 months of imprisonment, which is consistent with the
sentencing range that the Government asserts was considered by the district
court. Walker’s sentence of 12 months of imprisonment was within this range.
In addition, because the district court heard and considered the statements of
Walker and his counsel, we conclude that Walker has not demonstrated a
reasonable probability that an explicit discussion of the relevant § 3553(a)
factors or additional explanation of the sentencing decision would have
resulted in a lesser sentence. See United States v. Culbertson, 712 F.3d 235,
243 (5th Cir. 2013).
Walker also argues that the additional sentence of supervised release
imposed constituted an ambiguous or illegal sentence. We review a claim of
an illegal sentence de novo, even if the defendant failed to object in the district
court. See United States v. Thomas, 600 F.3d 387, 388 (5th Cir. 2010). After
imposing a 12-month sentence of imprisonment, the district court ordered that
Walker serve an additional supervised release term of 24 months or “whatever
amount of time is unused.” We agree with the parties that this could be
interpreted as imposing as much as 29.5 months of supervised release, which
would result in an illegal sentence. See 18 U.S.C. § 3583(h). Therefore, we
VACATE the sentence in part and REMAND to the district court with
instructions to modify the judgment to reflect that Walker is sentenced to
24 months of supervised release.
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