United States v. Moreland , 253 F. App'x 412 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 8, 2007
No. 07-30183
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JESS WILLARD MORELAND, JR
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:02-CR-60047-1
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges:
PER CURIAM:*
Jess Willard Moreland, Jr., challenges the sentence imposed following the
third revocation of his supervised release from his 1998 guilty plea conviction for
making a false statement on a loan application to the Farmers Home
Administration (FmHA) in violation of 18 U.S.C. § 1014 (counts 1-3); theft of
government money in violation of 18 U.S.C. § 641 (counts 4-9); money laundering
in violation of 18 U.S.C. § 1957 (counts 15-19); and one count of paying a gratuity
to a government employee in violation of 18 U.S.C. § 201(c)(1)(A) (count 20).
*
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should not be published and is not precedent except under the limited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. 07-30183
Upon revoking Moreland’s supervised release, the district court sentenced
Moreland to a total term of 36 months of imprisonment: 24 months as to count
1, 6 months to count 2, and 6 months to count 3, all to be served consecutively.
For the first time on appeal, Moreland contends that the 36-month sentence
imposed by the district court exceeded the statutory maximum sentence.
Generally when an issue is not raised below, we review only for plain
error. United States v. Sias, 227 F.3d 244, 246 (5th Cir. 2000). “However,
because a sentence which exceeds the statutory maximum is an illegal sentence
and therefore constitutes plain error, our review of the issue presented in this
appeal will be de novo.” Id.Moreland’s conviction for making false statements on his loan application
to the FmHA carried with it the most severe penalty, up to 30 years of
imprisonment. See 18 U.S.C. § 1014. Thus, Moreland’s conviction on these
counts was for a Class B felony. 18 U.S.C. § 3559(a). Under the version of 18
U.S.C. § 3583(e)(3) applicable to Moreland’s 1998 convictions, the maximum
cumulative term of imprisonment upon revocation to which Moreland was
subject was 36 months. However, Moreland had previously been sentenced to
a total of ten months of imprisonment as a result of his two prior revocations in
2002 and 2006, and as a result of these two prior revocations, Moreland was
serving only a single term of supervised release. Consequently, the maximum
term of imprisonment to which Moreland could be sentenced following the third
revocation was 26 months. Accordingly, as the Government concedes, the total
sentence of 36 months imposed by the district court exceeded the statutory
maximum and is illegal. Moreland’s sentence is VACATED and the case is
REMANDED for resentencing.
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