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United States v. Williams , 312 F. App'x 641 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
February 27, 2009
No. 08-60777
Summary Calendar                    Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
NOAH WILLIAMS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:07-CR-123-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Noah Williams appeals the 60-month statutory maximum sentence
imposed by the district court following the revocation of his supervised release.
Williams argues that the 60-month sentence is unreasonable in light of the
advisory guidelines range of 24 to 30 months of imprisonment. He argues that
the sentence is unreasonable because the district court’s justification for the
sentence was inadequate, and the district court failed to state its reasons
supporting the sentence imposed in its written judgment. He contends that his
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-60777
conduct did not place him outside of the mine-run of cases contemplated by the
Guidelines. He argues that the 60-month sentence is unreasonable because due
to the timing of his underlying offense for conspiracy to distribute cocaine base,
his original sentence was about 18 months longer than it would have been had
he received the benefit of recent amendments to the Guidelines for crack cocaine
offenses. Williams was arrested twice and ultimately convicted for possession
with intent to distribute while on supervised release following his time in prison
for conspiracy to distribute cocaine base.
Defense counsel’s arguments at the revocation hearing may have been
sufficient to preserve for appeal Williams’s argument that the sentence is
substantively unreasonable. However, when a defendant argues for the first
time on appeal that the sentence is procedurally unreasonable because the
district court failed to adequately explain its reasons for the sentence, we review
that issue for plain error. See United States v. Lopez-Velasquez,
    526 F.3d 804
    ,
806 (5th Cir.), cert. denied,
    129 S. Ct. 625 
    (2008). To show plain error, the
appellant must show an error that is clear or obvious and that affects his
substantial rights. United States v. Baker,
    538 F.3d 324
    , 332 (5th Cir. 2008),
cert. denied,
    129 S. Ct. 962 
    (2009). If the appellant makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
    Id. In imposing 
    a sentence upon the revocation of supervised release, a district
court may impose any sentence that falls within the maximum term of
imprisonment allowed by statute. See 18 U.S.C. § 3583(e)(3). The district court
is to consider the factors set forth in § 3553(a) and the advisory policy
statements found in Chapter Seven of the Guidelines. United States v. Mathena,
    23 F.3d 87
    , 90 (5th Cir. 1994).
Although Williams’s 60-month sentence exceeds the advisory guidelines
range, it does not exceed the statutory maximum term of imprisonment. See
§§ 3559(a)(1), 3583(e)(3); U.S.S.G. § 7B1.4(a), p.s. The district court provided
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No. 08-60777
adequate reasons for the imposition of Williams’s sentence. The district court
stated that it considered the arguments of counsel, Williams’s testimony, the
guidelines policy statements, the § 3553 sentencing factors, the nature of the
offense, and Williams’s history. The district court considered Williams’s claim
that he had reformed against the facts showing a continuing life of crime
following his release, continuing even after a first arrest for dealing drugs, as
well as other factors. The district judge recessed the revocation hearing to review
carefully the exhibits submitted before ruling. We will not reweigh the § 3553(a)
factors. See Gall v. United States,
    128 S. Ct. 586
    , 597 (2007). Williams has not
demonstrated plain error in the district court’s procedure, and his sentence is
neither unreasonable nor plainly unreasonable substantively. See United States
v. Hinson,
    429 F.3d 114
    , 120 (5th Cir. 2005); United States v. Teran,
    98 F.3d 831
    ,
836 (5th Cir. 1996).     Accordingly, the judgment of the district court is
AFFIRMED.
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