United States v. Green
162 F. App'x 283
January 9, 2006 · Docket 04-10968
Headnotes
Generated summaries- Headnote 1
Green argued that his 18‑month revocation term violated the original 6‑ to 12‑month guideline range. The court relied on United States v. Pena, which holds that revocation courts are not limited by the earlier guideline range.
- Headnote 2
Green moved for plain error, claiming the revocation sentence exceeded the guideline range. The court found no clear error, applying the standards set forth in Olano and the Fifth Circuit’s plain‑error jurisprudence.
- Headnote 3
Green relied on Blakely and Booker, alleging that the longer revocation term required additional fact‑finding. The court explained that those precedents govern only increases beyond the statutory maximum, not departures from the earlier guideline range.
- Headnote 4
The court noted that the policy statements relevant to probation revocations are advisory, citing United States v. Hinson for that principle.
- Headnote 5
The court found Green’s 18‑month revocation sentence neither unreasonable nor plainly unreasonable and therefore affirmed the judgment.
- Headnote 6
The court relied on United States v. Pena, holding that revocation sentencing may exceed the original guideline range, and noted the 18‑month sentence was within the statutory maximum.
- Headnote 7
The opinion explained that Blakely and Booker require proof beyond a reasonable doubt only when a sentence exceeds the statutory maximum, not when it merely exceeds the advisory guideline range.
- Headnote 8
The court cited United States v. Hinson, emphasizing that guidelines and related policies are non‑binding and therefore cannot invalidate a revocation sentence that exceeds the original guideline range.
- Headnote 9
The opinion noted that the 18‑month sentence was within the statutory maximum of 20 years for the conviction, satisfying 18 U.S.C. § 3583(e).
- Headnote 10
The court referenced United States v. Olano and held that the district‑court error was not clear or obvious, so plain‑error reversal was unavailable.
- Headnote 11
The court concluded that the district court’s 18‑month sentence could not be shown to be erroneous, and therefore affirmed the judgment.
- Headnote 12
The opinion found the 18‑month term neither unreasonable nor plainly unreasonable, satisfying the reasonableness review articulated in United States v. Calverley.
- Headnote 13
The Fifth Circuit held in United States v. Pena that, upon revocation, the court may consider any permissible sentencing factor and is not bound by the original guideline range.
- Headnote 14
The court applied Blakely, Apprendi, and Booker, noting those cases restrict fact‑finding only when a sentence exceeds the statutory maximum; exceeding the guideline range alone is permissible if the term is reasonable.
- Headnote 15
The court noted that policy statements concerning probation revocations are merely advisory and do not conflict with the Sixth Amendment or the Booker decision.
- Headnote 16
The court held that the district court’s error could not be deemed clear or obvious, invoking United States v. Olano’s plain‑error standard, so the sentence stands.
- Headnote 17
The 18‑month sentence, though above the original guideline range, was within the statutory maximum of 20 years for the offense, satisfying the statutory authority.
- Headnote 18
The court found the 18‑month term neither unreasonable nor plainly unreasonable, satisfying the reasonableness review articulated in United States v. Calverley.
- Headnote 19
The court relied on United States v. Pena, holding that revocation courts are not confined to the original guideline range and may impose a longer term if justified.
- Headnote 20
The Sixth Amendment limits facts that raise a sentence above the statutory maximum; the guideline range is advisory, so exceeding it is permissible when the statutory ceiling is respected.
- Headnote 21
The court noted that the Guidelines’ advisory nature means they cannot override statutory authority or constitutional requirements in revocation sentencing.
- Headnote 22
The sentence, though beyond the guideline range, fell within the 20‑year statutory maximum for the conviction, satisfying the statutory limit.
- Headnote 23
The court found no clear or obvious error in imposing the revocation term, so the plain‑error standard did not require reversal.
- Headnote 24
The court held that the 18‑month sentence was neither unreasonable nor plainly unreasonable, satisfying the reasonableness review.
Opinion
Rocky Shane Green has appealed the 18-month term of imprisonment imposed on revocation of his probation. Green contends that he should have been sentenced within the guideline-imprisonment range for the original offense of conviction, that is six to 12 months. Green concedes that the issue should be reviewed for plain error. In United States v. Pena, 125 F.3d 285, 287 (5th Cir.1997), we held that, upon revocation of probation, the sentencing court is “not limited to the sentencing range available at the time of the initial sentence.” Any error by the district court could not have been “clear or obvious” in light of Pena. See United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.1994) (en banc).
Green contends that his sentence was imposed illegally, in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because he was sentenced to a term of imprisonment exceeding the term to which he was originally exposed based on the district court’s finding that he had violated a condition of his probation. Green concedes that this court’s review is for plain error. Green cannot show that the district court erred.
In Blakely, the Supreme Court held that the Sixth Amendment prohibits state sentences greater than “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303, 124 S.Ct. 2531 (emphasis omitted). The rule in Blakely was extended to the Federal Sentencing Guidelines in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Supreme Court held that the mandatory system of enhancements established by the United States Sentencing Guidelines violated the Sixth Amendment. 125 S.Ct. at 749-50.
The policy statements applicable to probation revocations are advisory only and do not contravene the rule in Booker or the Sixth Amendment. See United States v. Hinson, 429 F.3d 114, 117 (5th Cir.2005) (supervised release case); Pena, 125 F.3d at 287. Although the sentence exceeded the guideline range, see U.S.S.G. § 7B1.4(a), it was within the statutory maximum of 20 years for the offense of conviction. See Pena, 125 F.3d at 288. The district court stated that it wished to provide Green with an opportunity to participate in a comprehensive substance abuse treatment program provided by the Federal Bureau of Prisons. See id. at 287-88. The sentence was neither unreasonable nor plainly unreasonable and was not imposed in violation of law. See id.; see also Hinson, 429 F.3d at 119-20. The judgment is
AFFIRMED.
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.