United States v. Wheat ( 2006 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                 October 24, 2006
    Charles R. Fulbruge III
    Clerk
    No. 04-11101
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ORLANDO DEMETRIUS WHEAT,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:00-CR-161-ALL-A
    --------------------
    Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
    PER CURIAM:*
    In 2000, Orlando Demetrius Wheat was convicted pursuant to a
    guilty plea of being a prohibited person in possession of a
    firearm.   He was sentenced to 27 months of imprisonment and three
    years of supervised release.   Wheat appeals the sentence imposed
    following the revocation of his supervised release.
    Citing Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), Blakely
    v. Washington, 
    542 U.S. 296
    (2004), and United States v. Booker,
    
    543 U.S. 220
    (2005), Wheat complains that the 27-month term 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    this opinion should not be published and is not precedent except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.
    No. 04-11101
    -2-
    imprisonment imposed for his conviction and the 14-month term of
    imprisonment imposed for his violation of supervised release
    exceeded in the aggregate the 33-month total term of imprisonment
    allowed under the United States Sentencing Guidelines for his
    initial conviction based on the facts alleged in his indictment
    and admitted by him.   Wheat argues as a result that the district
    court was authorized to impose no more than a six-month term of
    imprisonment upon revocation of his supervised release unless the
    facts pertaining to his release violations were alleged in an
    indictment and found by a jury beyond a reasonable doubt.   Wheat
    contends that the alleged Booker violation in his case cannot be
    cured by application of Booker’s remedial advisory guidelines
    system because his initial sentence is final and because it would
    violate due process and ex post facto laws.    Wheat’s arguments
    lack merit.   See United States v. Alfaro-Hernandez, 
    453 F.3d 280
    ,
    281-82 (5th Cir. 2006); United States v. Hinson, 
    429 F.3d 114
    ,
    116-19 (5th Cir. 2005), cert. denied, 
    126 S. Ct. 1804
    (2006).
    The 14-month term of imprisonment imposed upon revocation of
    Wheat’s supervised release did not exceed the statutory maximum
    term of imprisonment that the district court could have imposed.
    See 18 U.S.C. § 3583(e)(3).    Accordingly, Wheat’s sentence upon
    revocation was neither “unreasonable” nor “plainly unreasonable.”
    See 
    Hinson, 429 F.3d at 120
    .
    AFFIRMED.
    

Document Info

Docket Number: 04-11101

Judges: Jolly, Demoss, Stewart

Filed Date: 10/24/2006

Precedential Status: Non-Precedential

Modified Date: 3/1/2024