     Case: 11-10073     Document: 00511668739         Page: 1     Date Filed: 11/17/2011




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

                                                                            FILED
                                                                        November 17, 2011
                                     No. 11-10073
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

KEVIN NEWSON,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:03-CR-164-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Kevin Newson appeals the district court’s judgment revoking his term of
supervised release and sentencing him to 36 months of imprisonment. He
argues that the district court improperly considered the factors set forth in 18
U.S.C. § 3553(a)(2)(A). Those factors are the need for the sentence “to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.” § 3553(a)(2)(A). The Government has moved for
summary affirmance or, alternatively, for an extension of time within which to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10073   Document: 00511668739      Page: 2   Date Filed: 11/17/2011

                                  No. 11-10073

file a brief. The Government argues that, if the district court erred, any error
was not clear or obvious at the time Newson was sentenced and the district
court’s judgment was thus neither plainly unreasonable nor plain error.
      Because Newson did not object in the district court that the court
considered a prohibited factor in setting his sentence, we review for plain error.
See United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009). To show plain
error, Newson must show an error that is clear or obvious and that affects his
substantial rights. United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010).
      After Newson was sentenced, while the instant appeal was pending, we
decided United States v. Miller, 634 F.3d 841 (5th Cir. 2011), petition for cert.
filed (May 27, 2011). In Miller, we held that “it is improper for a district court
to rely on § 3553(a)(2)(A) for the modification or revocation of a supervised
release term.” 634 F.3d at 844. To the extent that the district court relied on
the § 3553(a)(2)(A) factors, such reliance was impermissible under Miller.
However, the split among the circuit courts of appeals on the issue and the lack
of a published opinion from this court at the time of the district court
proceedings rendered any consideration of the § 3553(a)(2)(A) factors neither
clear nor obvious legal error. See United States v. Salinas, 480 F.3d 750, 759
(5th Cir. 2007). Thus, Newson has shown no plain error. See Puckett v. United
States, 129 S. Ct. 1423 (2009).
      The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is GRANTED; its alternative motion for an
extension of time within which to file a brief is DENIED.




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