     Case: 10-50336 Document: 00511433399 Page: 1 Date Filed: 04/04/2011




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

                                                 FILED
                                                                             April 4, 2011
                                     No. 10-50336
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JAMIL CHERRY,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:06-CR-35-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Jamil Cherry appeals his 24-month sentence imposed following revocation
of his supervised release. In 2006, he pleaded guilty to unlawfully possessing a
firearm following a felony conviction, in violation of 18 U.S.C. § 922(g)(1), and
was sentenced to 30 months’ imprisonment and three years’ supervised release.
His supervised release began in January 2008. In March 2010, Cherry pleaded
true to allegations of violating:          conditions of his supervised release, by
repeatedly failing to report to the United States Probation Office (within 72

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50336 Document: 00511433399 Page: 2 Date Filed: 04/04/2011

                                    No. 10-50336

hours of his release and monthly thereafter); and Texas law, by possessing
marijuana and a controlled substance. The district court revoked his supervised
release and sentenced him within the two-year statutory maximum, see 18
U.S.C. §§ 924(a)(2), 3559(a)(3), 3583(e)(3), and within the range of 21 to 24
months’ imprisonment, as advised by advisory Sentencing Guidelines’ policy
statements. See T EX. H EALTH & S AFETY C ODE § 481.115; T EX. P ENAL C ODE
§12.35(a); U.S.S.G. §§ 7B1.1(a), 7B1.4(a), (b)(3)(A), p.s.
         As in district court, Cherry challenges the reasonableness of his sentence,
contending it is greater than necessary to achieve the sentencing goals of 18
U.S.C. § 3553. In that regard, Cherry maintains his sentence: should reflect his
violation of the trust of the court rather than punish him for his criminal
offenses; and should have been lowered to reflect the year he served in jail for
the State criminal offenses that triggered the revocation of supervised release.
         Pre-Booker, sentences imposed upon revocation of supervised release were
upheld unless “in violation of the law or plainly unreasonable”. United States
v. Jones, 484 F.3d 783, 791 (5th Cir. 2007) (internal quotation marks omitted).
Following Booker, sentences are reviewed for reasonableness under the abuse-of-
discretion standard. United States v. Mondragon-Santiago, 564 F.3d 357, 360
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009). The question of which standard
applies to revocation of supervised release post-Booker has resulted in a circuit
split.
         Finding a more deferential standard of review appropriate, our court held
recently that, post-Booker, the plainly-unreasonable standard is to be applied for
reviewing supervised-release revocation. United States v. Miller, No. 09-11063,
2011 WL 692988, at *1 (5th Cir. 1 Mar. 2011). Under this standard, we first
consider “whether the district court procedurally erred before we consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard”. Id. at *2 (citation and internal quotation marks omitted). “If a



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                                  No. 10-50336

sentence is unreasonable, then we consider whether the error was obvious under
existing law.” Id.
      Cherry does not assert procedural error. The district court’s refusal to
accede to Cherry’s request that he be credited for time served in jail was
consistent with the preference for consecutive sentences in Guidelines policy
statement § 7B1.3(f). E.g., U.S.S.G. § 7B1.3(f), p.s. (“Any term of imprisonment
imposed upon the revocation of . . . supervised release shall be ordered to be
served consecutively to any sentence of imprisonment that the defendant is
serving . . . .”). In the light of Cherry’s numerous violations of the conditions of
his supervised release, and his high criminal-history category, Cherry’s within-
Guidelines sentence was not plainly unreasonable.
      AFFIRMED.




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