United States v. Michael Richardson , 455 F. App'x 410 ( 2011 )


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  •      Case: 11-50173     Document: 00511699914         Page: 1     Date Filed: 12/19/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    December 19, 2011
    No. 11-50173
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    MICHAEL JOE RICHARDSON, also known as Michael Richardson,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 6:04-CR-56-1
    Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Michael Joe Richardson appeals the 24-month sentence imposed following
    the revocation of his supervised release. Richardson argues that his sentence,
    which was outside the recommended policy range, is unreasonable because he
    had completed approximately 34 months of his three-year supervised release
    “prior to the earliest allegations in the Government’s petition.” He contends that
    the district court should have imposed a lesser sentence because he has been
    either on supervision, home confinement, or incarcerated for the relevant offense
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50173    Document: 00511699914      Page: 2   Date Filed: 12/19/2011
    No. 11-50173
    since 2004. Richardson also claims that the 24-month sentence is unreasonable
    because the district court improperly considered the veracity of his revocation
    testimony when imposing the sentence. We AFFIRM.
    When a district court revokes supervised release, it may impose any
    sentence within the statutory maximum term of imprisonment, taking into
    account the sentencing factors set forth in 
    18 U.S.C. § 3553
    (a) as well as the
    nonbinding policy statements of Chapter Seven of the Sentencing Guidelines
    codified at § 3583(e) of the same title. See United States v. McKinney, 
    520 F.3d 425
    , 427-28 (5th Cir. 2008).
    This court recently held that revocation sentences are reviewed under
    Section 3742(a)’s “plainly unreasonable” standard. United States v. Miller, 
    634 F.3d 841
    , 843 (5th Cir. 2011), cert. denied, No. 10-10784, 
    2011 WL 2148772
     (U.S.
    Oct. 31, 2011). We explained that the use of this more deferential standard was
    appropriate “given that the goal of revocation is to punish a defendant for
    violating the terms of the supervised release.” 
    Id. at 843
    . That objective is
    different from the purpose of an offender’s original sentence; therefore, “the use
    of different reviewing standards is appropriate.” 
    Id.
    “We evaluate whether the district court procedurally erred before we
    consider ‘the substantive reasonableness of the sentence under an abuse-of-
    discretion standard.’” 
    Id.
     (quoting United States v. Brantley, 
    537 F.3d 347
    , 349
    (5th Cir. 2008)). Only if the sentence is unreasonable, do we then consider if the
    error was “obvious under existing law.” 
    Id.
    We find no procedural error. Richardson’s contention that the court relied
    on his credibility as a sentencing factor is inaccurate. The transcript shows that
    the assessment of his truthfulness may have motivated the court’s determination
    that the allegations were “true and correct,” but played no role in its subsequent
    sentencing.
    Because the 24-month sentence Richardson received on revocation was not
    greater than what is authorized by statute, it is “clearly legal.” United States v.
    2
    Case: 11-50173    Document: 00511699914     Page: 3   Date Filed: 12/19/2011
    No. 11-50173
    Pena, 
    125 F.3d 285
    , 288 (5th Cir. 1997); see 
    18 U.S.C. § 3583
    (e)(3). Richardson
    had an extensive history of violations of the conditions of probation and of his
    supervised release. His 2004 conviction involved counterfeiting of a United
    States security. Since then, he has numerous violations including theft by check
    and fraudulent use of identifying information. Based on that history, a 24-
    month sentence was not plainly unreasonable. We have “routinely upheld
    release revocation sentences in excess of the advisory range but within the
    statutory maximum.” United States v. Whitelaw, 
    580 F.3d 256
    , 265 (5th Cir.
    2009) (quotation marks and citation omitted). In Whitelaw, we affirmed a 36-
    month sentence when the policy range from the Guidelines was identical to
    Richardson’s. 
    Id.
    AFFIRMED.
    3
    

Document Info

Docket Number: 11-50173

Citation Numbers: 455 F. App'x 410

Judges: Garza, Haynes, Per Curiam, Southwick

Filed Date: 12/19/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023