United States v. Calvin Pennywell, Jr. ( 2019 )

Case: 18-31091 Document: 00515179647 Page: 1 Date Filed: 10/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-31091
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 30, 2019
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee,
v.
CALVIN W. PENNYWELL, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50124-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
In 2004, Calvin W. Pennywell, Jr., pleaded guilty to possession with
intent to distribute five grams or more of cocaine base in violation of 21 U.S.C.
§ 841(a) and (b)(1)(B)(iii) (count one) and possession of firearms in relation to
a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (count two). He
was sentenced to 100 months of imprisonment on count one and 60 months of
imprisonment on count two, to be served consecutively, and four years of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-31091 Document: 00515179647 Page: 2 Date Filed: 10/30/2019
No. 18-31091
supervised release on count one and three years of supervised release on count
two, to be served concurrently; his sentence on count one was later reduced to
60 months of imprisonment. Pennywell began serving his supervised release
term on November 1, 2012. A warrant for his arrest was issued on May 16,
2016. The district court revoked his supervised release and sentenced him to
48 months of imprisonment with no additional term of supervised release.
On appeal, Pennywell argues that the 48-month sentence imposed by the
district court exceeds the statutory maximum sentence and that the district
court erred in calculating the advisory guidelines range. The Government
concedes that the 48-month sentence exceeds the statutory maximum
sentence.
A sentence that exceeds the statutory maximum is an illegal sentence.
United States v. Vera, 542 F.3d 457, 459 (5th Cir. 2008). Despite the lack of
any objection in the district court, our review is de novo. United States v.
Oswalt, 771 F.3d 849, 850 (5th Cir. 2014); Vera, 542 F.3d at 459.
In imposing a revocation sentence, the district court is directed to
consider the factors enumerated in 18 U.S.C. § 3553(a), including the non-
binding policy statements found in Chapter 7 of the Sentencing Guidelines.
United States v. Mathena, 23 F.3d 87, 90-93 (5th Cir. 1994). Section 7B1.4
provides that, when, as in this case, there is a Grade A violation and a criminal
history category of V: (1) if the underlying conviction is a Class A felony, the
guidelines range is 46 to 57 months; and (2) if the underlying conviction is a
Class B felony, the guidelines range is 30 to 37 months. U.S.S.G. § 7B1.4(a).
At the time the arrest warrant was issued, Pennywell had completed his
three-year term of supervised release for count two and was serving his four-
year term of supervised release for count one. Because count one was
punishable by five to forty years of imprisonment, it was a Class B felony. See
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Case: 18-31091 Document: 00515179647 Page: 3 Date Filed: 10/30/2019
No. 18-31091
18 U.S.C. § 3559(a)(2); § 841(b)(1)(B)(iii). Upon revoking a term of supervised
release imposed for a Class B felony, the district court may impose a new prison
term of not more than three years. See 18 U.S.C. § 3583(e)(3). The applicable
policy guidelines range was 30 to 37 months. See § 7B1.4(a). In view of the
foregoing, the district court erred in calculating the advisory guidelines range
and in imposing a 48-month sentence that exceeds the statutory maximum
sentence of three years. See Vera, 542 F.3d at 459. We therefore VACATE the
sentence and REMAND for resentencing.
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