     Case: 09-50746 Document: 00511398556 Page: 1 Date Filed: 03/02/2011




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

                                                 FILED
                                                                            March 2, 2011
                                     No. 09-50746
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GEORGE MICHAEL BYRON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:02-CR-307-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       George Michael Byron appeals the 48-month sentence of imprisonment
and the three-year term of supervised release imposed following the revocation
of his sentence of probation. The five-year probation sentence was imposed after
he pleaded guilty to making a false statement in connection with the purchase
of a firearm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50746

      Byron argues that the sentence was greater than necessary to meet the
goals of 18 U.S.C. § 3553(a) and was unreasonable under the Booker 1
reasonableness standard or the plainly unreasonable standard. He asserts that
the 21-27-month sentence recommended by the policy statement would be
sufficient for his probation violation because he had received a received a
separate sentence for the underlying violation of possession of cocaine. He also
contends that the three-year term of supervised release is greater than
necessary in light of his earlier supervised period on probation.
      Because Byron did not object to the reasonableness of the sentence in the
district court, review is for plain error. United States v. Jones, 484 F.3d 783, 792
(5th Cir. 2007). Where a defendant violates a condition of probation prior to the
expiration or termination of the term of probation, the district court may, after
conducting a hearing, and after considering the factors set forth in § 3553(a),
revoke the term of probation and resentence the defendant. 18 U.S.C. § 3565(a).
Upon revocation of probation, the district court can impose any sentence that
falls within the authorized statutory maximum sentence, and it is not bound by
the advisory policy statements recommending revocation sentences. United
States v. Whitelaw, 580 F.3d 256, 265 (5th Cir. 2009); United States v. McKinney,
520 F.3d 425, 427 (5th Cir. 2008).
      Byron’s conduct constituted serious violations of the trust placed in him
by the district court in imposing a sentence of probation and supported a
sentence above the range recommended by the policy statement. See United
States v. Headrick, 963 F.2d 777, 782 (5th Cir. 1992). The record reflects that
the district court considered the relevant factors stated in § 3553(a), including
Byron’s personal and criminal history, his need for drug rehabilitation, and a
sentence sufficient to deter Byron’s further recidivism. Byron’s challenge to the
three-year term of supervised release is not convincing in light of his failure to


      1
          543 U.S. 220 (2005).

                                         2
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                                 No. 09-50746

comply with the conditions of release during the five-year sentence of probation.
The district court explained that it was imposing a three-year term of supervised
release so that Byron would be held accountable for any further violations and
to provide Byron with an incentive to be a law-abiding citizen.
      The district court clearly considered the relevant § 3553(a) factors and
imposed a reasonable sentence below the statutory maximum. McKinney, 520
F.3d at 427. Byron did not demonstrate that the district court committed plain
error in imposing sentence. Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). The revocation sentence is AFFIRMED.




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