United States v. Wesley , 295 F. App'x 700 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 9, 2008
No. 07-11201
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CURTIS DEWAYNE WESLEY
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CR-247-1
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges
PER CURIAM:*
Curtis Dewayne Wesley appeals his sentence following the revocation of
the three-year term of supervised release that was imposed for his conviction of
being a felon in possession of a firearm. In revoking Wesley’s supervised release,
the district court sentenced Wesley to 23 months of imprisonment and 13
months of supervised release. This sentence was above the guidelines range for
his revocation.
*
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should not be published and is not precedent except under the limited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. 07-11201
Wesley argues that his revocation sentence was either unreasonable or
plainly unreasonable because (1) his conduct did not distinguish him from others
in his sentencing range, (2) the district court focused too heavily on his need for
drug treatment, and (3) the district court did not explicitly mention the 18
U.S.C. § 3553(a) factors in sentencing him. Because Wesley did not object to his
sentence in the district court, review is for plain error only. See United States
v. Jones, 484 F.3d 783, 792 (5th Cir. 2007).
Wesley admitted the facts supporting the revocation of his supervised
release. Those admitted facts included repeated violations of the prohibition on
using and possessing narcotics. Wesley also failed to submit to mandatory urine
tests and failed to turn himself in after agreeing to do so voluntarily. While he
contends that his conduct was “average,” the number of violations, some
occurring almost immediately after his release, supports a finding that his
conduct was considerably worse than the “average.” The district court expressly
stated in the judgment that the revocation and sentence were based upon the
government’s presentation and the defendant’s admissions. At the sentencing
hearing, the district judge stated clearly that he considered “the range of
punishment provided by the policy statement,” and concluded that the guidelines
range was not “adequate in this case when I consider all of the factors the Court
is to consider under 18 United States Code Section 3553(a).” “Examining the full
sentencing record reveals the district court’s reasons for the chosen sentence and
allows for effective review by this court.” United States v. Bonilla, 524 F.3d 647,
659 (5th Cir. 2008). As in Bonilla, “our task would have been easier” if the
district court had more clearly spelled out its reasoning. Id. However, we
cannot find on this record that the district court plainly erred in stating its
reasoning and in imposing a sentence above the guidelines given the facts
admitted by the defendant.
In sum, Wesley has not shown that the district court failed to consider the
factors enumerated in § 3553(a) or the policy statements found in Chapter Seven
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No. 07-11201
of the Sentencing Guidelines, and thus he has not shown that the district court
plainly erred in imposing a sentence that was within the statutory maximum.
See 18 U.S.C. § 3583(e)(3); United States v. Mathena, 23 F.3d 87, 90-93 (5th Cir.
1994).
AFFIRMED.
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