United States v. Toomey , 271 F. App'x 439 ( 2008 )

Menu:

            IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 28, 2008
No. 06-10503
Summary Calendar             Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MICHAEL D TOOMEY
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:05-CR-115-ALL
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
PER CURIAM:*
Michael D. Toomey pleaded guilty to interstate transportation of child
pornography and aiding and abetting (counts one through four) and to
possession of child pornography and aiding and abetting (counts five through
six).   The district court sentenced Toomey to a total 360-month term of
imprisonment, a $600 special assessment, and six concurrent life terms of
supervised release. Toomey challenges the district court’s imposition of life
*
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should not be published and is not precedent except under the limited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. 06-10503
terms of supervised release as to his first four counts of conviction, conceding
that plain error review applies. He argues that the district court’s imposition of
life terms of supervised release was either an upward departure or a non-
guidelines variance from the applicable guidelines range and that the court
plainly erred because he was not provided notice and because the court failed to
provide a fact specific rationale for sentencing outside of the applicable
guidelines range.
Because Toomey did not object in the district court, review is for plain
error. See United States v. Olano,

507 U.S. 725

, 731-37 (1993). Relief on plain
error review is only available if we find (1) error, (2) that is plain, i.e., clear or
obvious, and (3) that affected the defendant’s substantial rights. United States
v. Jones,

444 F.3d 430

, 436 (5th Cir.), cert. denied,

126 S. Ct. 2958

(2006). If that
showing is made, we have the authority to correct the error if “the error seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.”

Id. (internal quotation

marks and citation omitted).
As the Government argues, the district court appropriately applied the
2005 version of the Sentencing Guidelines pursuant to the so-called “one-book
rule.” See U.S.S.G. § 1B1.11(b)(3), p.s. (2005); see also United States v. Butler,

429 F.3d 140

, 153-54 (5th Cir. 2005). The Presentence Report, adopted by the
district court, relied on U.S.S.G. § 5D1.2(b), p.s. (2005), in stating that the
guideline term of supervised release was “life per count.” We have characterized
the imposition of life terms of supervised release under virtually identical prior
versions of U.S.S.G. § 5D1.2, p.s. (2005), as upward departures. See United
States v. Allison,

447 F.3d 402

, 407 (5th Cir. 2006); United States v. Gonzalez,

445 F.3d 815

, 818 (5th Cir. 2006). As the Government argues, however, because
the applicable 2005 version of § 5D1.2 provides that the supervised release term
“may be up to life, if the offense is--a sex offense,” the district court’s imposition
of the life terms of supervised release was not an upward departure or variance.
See § 5D1.2(b)(2) (2005).
2
No. 06-10503
“[A] district court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range.” United States v. Gall,

128 S. Ct. 586

, 596 (2007). The PSR, adopted by the district court, set forth the supervised
release term as “life per count,” without specifying a range. See § 5D1.2(a)(2),
(b). Assuming that the district court erred in failing to state that the guidelines
range was two years to life, and that such error was plain, Toomey has not
shown a “reasonable probability that, but for the district court’s misapplication
of the Guidelines, he would have received a lesser sentence.” United States v.
Villegas,

404 F.3d 355

, 364 (5th Cir. 2005) (post-Booker); but see United States
v. Ravitch,

128 F.3d 865

, 869 (5th Cir. 1997) (pre-Booker; holding that inquiry
is whether the district court could have imposed the same sentence). Consistent
with Ravitch, the district court could reimpose the same sentence on remand.
See

Ravitch, 128 F.3d at 869

. As in Jones, we need not resolve whether the
Villegas or Ravitch standard governs the substantial-rights inquiry because a
remand is not required under either standard. See

Jones, 444 F.3d at 437-38