     Case: 09-30738     Document: 00511150108          Page: 1    Date Filed: 06/22/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 22, 2010
                                     No. 09-30738
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TIM HALL,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:94-CR-65-1


Before GARWOOD, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
        Tim Hall appeals the 60-month sentence imposed upon the revocation of
his supervised release. Hall was previously convicted of one count of conspiracy
to possess with intent to distribute cocaine base and sentenced to 135 months in
prison and to five years of supervised release.
        The Government alleged that Hall violated the terms of his supervised
release as follows: (1) he tested positive for cocaine in 2006, (2) he was arrested
for aggravated assault and possession of a firearm in 2006, (3) he was arrested

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-30738

for possession of a controlled substance with intent to deliver and evading arrest
in 2008, (4) he associated with a convicted felon in connection with the 2008
arrest, and (5) he failed to notify his probation officer within 72 hours of his
arrest in 2006. During the revocation hearing, Officer Bobby Hopson testified,
inter alia, about two uncharged incidents in which Hall had attempted to flee
from arrest. Hall had not been given notice that the evidence of this uncharged
conduct would be introduced.
      Halls contends on appeal (1) that the district court erred by relying on his
uncharged misconduct when determining his sentence and (2) that his sentence
is substantively unreasonable in light of the fact that his violations of the
conditions of supervised release were relatively minor and occurred over a period
of four years. Hall did not object to his sentence as unreasonable or alert the
district court to the legal argument he now presents. Review is therefore for
plain error. United States v. Hernandez-Martinez, 485 F.3d 270, 272 (5th Cir.
2007).
      To show plain error, Hall must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 129
S. Ct. 1423, 1429 (2009).    If he makes such a showing, this court has the
discretion to correct the error if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id.
      Prior to United States v. Booker, 543 U.S. 220 (2005), this court would
uphold a sentence imposed after a revocation of supervised release unless it
violated the law or was plainly unreasonable. United States v. Stiefel, 207 F.3d
256, 259 (5th Cir. 2000) (citations omitted). In Booker, however, the Supreme
Court directed appellate courts to review sentences for reasonableness. 543 U.S.
at 259-62. This court has declined to resolve which standard of review applies
to revocation sentences after Booker. United States v. Hinson, 429 F.3d 114,
119-20 (5th Cir. 2005). However, we need not decide whether the revocation



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sentence was either unreasonable or plainly unreasonable, because we hold that
the plain error standard of review forecloses appellate relief for Hall.
      In the first place, it is not clear that the district court would have erred by
relying on uncharged conduct in deciding how to sentence Hall for violating the
terms of his supervised release. Sentencing upon the revocation of supervised
release is governed by 18 U.S.C. § 3583(e)(3), which provides that a court may
revoke a term of supervised release and require the defendant to serve all or part
of the term in prison “after considering the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)” of Title 18.    18
U.S.C.A. § 3583(e) (West Supp. 2010). Federal Rule of Criminal Procedure
32.1(b)(2) provides that a defendant must have notice of all grounds upon which
revocation will be sought. However, it does not expressly require notice of all
information the court may decide to consider at sentencing under the Section
3553(a) factors after the decision to revoke has been made. Although several
circuits, including this one, have assumed arguendo that it would be improper
to sentence a defendant on the basis of conduct presented to the court without
notice, we have been unable to find any case where a court was forced to decide
the issue. See, e.g., United States v. Berry, 583 F.3d 1032, 1033–34 (7th Cir.
2009) (finding that, contrary to the plaintiff’s assertion, the district court did not
rely on uncharged conduct in deciding the defendant’s revocation sentence);
United States v. Hernandez-Martinez, 485 F.3d 270, 274 (5th Cir. 2007) (finding
that it could not be shown on plain error review that uncharged conduct
mentioned by the district court had actually been considered in reaching the
defendant’s revocation sentence); United States v. Moore, 443 F.3d 790, 794 (11th
Cir. 2006) (finding no evidence to suggest that the district court had relied on
uncharged conduct in reaching its sentence).
      Likewise, we decline to decide the issue in this case, because the record
does not establish Hall’s contention that the district court relied on uncharged
misconduct when determining his sentence. Although the district court heard

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testimony regarding Hall’s flight, the district court expressly refused to consider
it in deciding whether or not to revoke his sentence. Hall argues that this
implicitly means the court considered the uncharged conduct in deciding how to
sentence him. However, he did not object at his hearing, so it is impossible to
tell if the court actually considered the uncharged conduct in sentencing him or
not. Furthermore, the district court expressly noted that Hall had a lengthy
criminal history and stated that it based its sentence on the need to deter future
similar conduct. Hall does not contend, nor could he, that these factors were
improper. See 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010). Therefore,
because Hall did not object to his sentence and give the district court an
opportunity to clarify its reasons, and because the record clearly establishes that
the district court considered several factors that were unquestionably proper,
any error committed by the district court was not plain.          See Hernandez-
Martinez, 485 F.3d 270, 274 (5th Cir. 2007).
      Although Hall’s sentence exceeds the advisory guidelines range, it is not
substantively unreasonable. The district court noted Hall’s extensive criminal
history, correctly determined the advisory guidelines range, expressly stated
that it had considered the policy statements, and stated that its sentence was
based on the need to deter future similar conduct and to provide just
punishment. This court has affirmed sentences that deviated more from the
advisory range than Hall’s. E.g., United States v. Smith, 417 F.3d 483, 491-92
(5th Cir. 2005) (upholding departure from guidelines range maximum of 41
months to 120 months); Hernandez-Martinez, 485 F.3d 270, 271, 274 (upholding
departure from guidelines range maximum of 10 months to 46 months). Based
on the foregoing, the district court did not plainly err by sentencing Hall to 60
months in prison.
      Accordingly, the district court’s judgment is AFFIRMED.




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