     Case: 15-30968      Document: 00513588407         Page: 1    Date Filed: 07/12/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-30968                                   FILED
                                  Summary Calendar                             July 12, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BRANDI ALYSHA PINNER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 5:14-CR-5-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       In 2013, Brandi Alysha Pinner pleaded guilty to aiding and abetting the
distribution of methamphetamine and was sentenced to 15 months of
imprisonment and three years of supervised release. Pinner has appealed the
district court’s judgment revoking her supervised release and sentencing her
to 12 months of imprisonment.             Pinner contends that the district court




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30968

improperly considered the factors listed in 18 U.S.C. § 3553(a)(2)(A) in
determining her revocation sentence.
      A properly preserved objection to a revocation sentence is reviewed
under the plainly unreasonable standard. United States v. Warren, 720 F.3d
321, 326 (5th Cir. 2013). However, because the instant objection was not
asserted in the district court, our review is limited to plain error. See id. “To
prevail on plain error review, a defendant must show that an error occurred,
that the error was clear or obvious, and that the error affected his substantial
rights.” United States v. Walker, 742 F.3d 614, 616 (5th Cir. 2014). If those
factors are established, the decision to correct the forfeited error is within the
court’s sound discretion. Id.
      In determining whether to revoke a term of supervised release, the
district court must consider the factors set forth in 18 U.S.C. § 3553(a)(1),
(a)(2)(B)-(D), and (a)(4)-(7). 18 U.S.C. § 3583(e); see United States v. Miller,
634 F.3d 841, 844 (5th Cir. 2011). “Missing from this list is § 3553(a)(2)(A),
which allows a court to impose a sentence that reflects ‘the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the
offense.’” Miller, 634 F.3d at 844 (quoting § 3553(a)(2)(A)). This court has held
that “[w]hen sentencing a defendant under § 3583(e), a district court may not
consider § 3553(a)(2)(A) because Congress deliberately omitted that factor from
the permissible factors enumerated in the statute.” Miller, 634 F.3d at 844.
After Miller, this court clarified that a sentencing error occurs when an
impermissible consideration is a dominant factor in the court’s revocation
sentence, but not when it is merely a secondary concern or an additional
justification for the sentence. See Walker, 742 F.3d at 616.
      In setting forth its reasons at the revocation hearing, the district court
first cited a permissible factor set forth in § 3553(a)(1), stating that “the history



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and characteristics of the defendant” justify the above-guidelines one-year
revocation sentence. The court went on to cite § 3553(a)(2)(A) before stating
that Pinner’s “offenses are serious,” that she was, “as part of the revocation
proceeding, receiv[ing] just punishment” of 12 months, and that her
prevarications and inconsistent statements to the court and during the
investigation of her medical condition “justify a one-year sentence in order to
promote respect for the law.” The court twice described the revocation sentence
as “pure punishment” and stated that Pinner “will be punished for the
violations and the inability to follow rules and the false information that she
has supplied to this Court” regarding her medical condition.
      Even assuming that the district court plainly erred by making the
§ 3553(a)(2)(A) considerations a dominant factor in imposing the revocation
sentence and that this error affected Pinner’s substantial rights, this court is
not required to correct the forfeited error. See Walker, 742 F.3d at 616. Under
the fourth prong of plain-error review, this court “has the discretion to remedy
the error—discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.”
United States v. Rivera, 784 F.3d 1012, 1018 (5th Cir.), reh’g denied, 797 F.3d
307 (5th Cir. 2015) (internal quotation marks and citation omitted) (emphasis
in original). “In analyzing the fourth prong, we look to the degree of the error
and the particular facts of the case to determine whether to exercise our
discretion.” United States v. Prieto, 801 F.3d 547, 554 (5th Cir. 2015) (internal
quotation marks and citation omitted). “In the past, we have declined to
remedy some errors that may have caused sentence increases.”             Rivera,
784 F.3d at 1018-19, n.3 (collecting cases).
      “[T]he goal of revocation is to punish a defendant for violating the terms
of the supervised release.” Miller, 634 F.3d at 843. The Sentencing Manual



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contemplates a distinction “between punishment for the offense constituting
the supervised release violation[] and sanctioning the violation itself.” Rivera,
797 F.3d at 308-09. “Drawing a (very) fine line,” the Guidelines Manual states
that “the revoking court should not sentence the defendant with an aim to
punish the offense that constitutes the supervised release violation” but that
“the district court is instead punishing the defendant’s breach of the court’s
trust.” Rivera, 797 F.3d at 309. “[T]he Manual also states that ‘the nature of
the conduct leading to the revocation [may] be considered in measuring the
extent of the breach of trust.’    Id. (quoting U.S.S.G. Ch. 7, Pt. A, intro.
comment. (U.S. Sentencing Comm’n 2014)).
      In the instant case, the transcript of the revocation hearing indicates
that the district court was focused not on punishing Pinner for offenses alleged
in the revocation petition, but upon sanctioning her for the breaches of trust
exemplified by her repeated failures to comply with her supervised release
conditions and her misrepresentations to the court. See Rivera, 797 F.3d at
308-09.   Although it may have erred in articulating the reasons for its
determination, the district court was attempting to effectuate the appropriate
goal of sanctioning Pinner’s supervised release violations and breaches of trust.
See Miller, 634 F.3d at 843-44; Rivera, 797 F.3d at 308-09; U.S.S.G. Ch. 7,
Pt. A, intro. comment. As the particular facts of this case thus indicate only a
small degree of error that does not seriously affect the fairness, integrity, or
public reputation of judicial proceedings, we will not exercise our discretion to
remedy it. See Prieto, 801 F.3d at 554; Rivera, 784 F.3d at 1018-19. The
judgment is AFFIRMED.




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