     Case: 15-30470      Document: 00513479374         Page: 1    Date Filed: 04/25/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 15-30470                                FILED
                                                                              April 25, 2016
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

              Plaintiff - Appellee

v.

LOUIS W. HANDY,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Defendant appeals the district court’s revocation sentence and asserts
that it erred by imposing a term of supervised release for a sentencing factor
not included under 18 U.S.C. § 3583. Because we conclude that the defendant
fails to satisfy the plain error standard of review, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30470
                                       I.
      In 2010, Louis W. Handy pled guilty to the possession of a firearm by a
felon and received a sentence of imprisonment followed by supervised release.
However, when Handy failed to comply with the conditions of his release by
failing to obtain his GED or find gainful employment, the district court revoked
his supervised release. The district court imposed a revocation sentence that
included a prison term followed by supervised release.
      In 2015, after Handy served his prison term, the government moved to
revoke his supervised release a second time. The district court agreed and
revoked Handy’s supervised release for several violations including his failure
to obtain employment or enroll in a GED program. Then, the district court held
a sentencing hearing, which gave rise to this appeal.
      At the sentencing hearing, George Chaney – Handy’s attorney – asked
the district court to not impose supervised release. Initially, the district court
agreed, explaining to Handy:


            [A]ny recommitment to supervised release wouldn’t
            have any practical benefit for [Handy], because
            [Handy] has already been revoked now twice on
            supervised release.

Then, the district court announced its sentence: “[Handy]’s committed to the
custody of the Bureau of Prisons for a period of 11 months as to Count 1.”
      However, while the district court tried to explain its reasoning, Handy
interjected saying: “[i]t ain’t a crime, Your Honor.” The district court
admonished Handy for this interruption, but while the court addressed Handy,
he turned his back on the district court and started a conversation with
Chaney. Regarding this conduct, the district court stated:




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                                        No. 15-30470
               And, Mr. Handy, as your lawyer said, he’s got to listen.
               So do you. Again, further evidence of your failure to
               respect the law and follow instructions. You’ve been
               through court too many times not to know you’re not
               to speak when the judge is speaking. It’s further
               evidence of your attitude. Turning your back on me
               doesn’t help either. In fact – in fact – that kind of an
               attitude tells me I am going to put you on another term
               of supervised release, because I don’t think you’ve
               learned your lesson. I was going with you lawyer and
               not doing that. . .[b]ut that conduct you just did
               showed me – showed me something about you that I
               wanted to discount.

      Then, the district court imposed its modified sentence: an eleven-month
term of imprisonment followed by a twelve-month term of supervised release.
Chaney objected on behalf of Handy telling the district court: “[w]e notice our
intent to appeal and object to the sentence that was imposed [a]nd the
reimposition of supervision after the completion of that prison term.”
                                               II.
      Handy argues that his appeal is subject to the plainly unreasonable
standard of review. Generally, if a defendant preserves his objection to a
sentencing decision, the plainly unreasonable standard applies. 1 However, if a
defendant fails to preserve his objection, we review the sentencing decision
only for plain error. 2
      Handy asserts that he preserved his argument that the district court
erred by imposing a term of supervised release for an improper reason based
on his general objection to the sentence. “To preserve error, an objection must




      1   See United States v. Miller, 634 F.3d 841, 842-43 (5th Cir. 2011).
      2   United States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008).
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                                     No. 15-30470
be sufficiently specific to alert the district court to the nature of the alleged
error and to provide an opportunity for correction.” 3
      Handy failed to preserve his objection to the supervised release sentence
because his objection was too general to place the district court on notice of his
argument that the district court based its sentence on an impermissible factor.
This case is analogous to United States v. Davis, 532 F. App’x 547, 549 (5th
Cir. 2013) (citing United States v. Whitelaw, 580 F.3d 256-60 (5th Cir. 2009)),
where a defendant did not preserve his objection because “nowhere before the
district court did [defendant] object that the sentence was unreasonable, nor
did he alert the court to the legal argument he now presents that the court
considered an inappropriate factor.”
      In this case, similar to Davis, Handy did not object to the imposition of
the supervised release term as punishment for his disrespect to the court or for
any other improper reasons. Therefore, we review the sentence for plain error.
                                            III.
      Handy must establish three elements to satisfy the plain error standard
of review: the district court committed an error, the error was plain, and the
error affected his substantial rights. 4 However, even if Handy meets his
burden, this Court exercises its discretion to reverse the district court only if
“the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” 5
      Handy argues that the district court committed an error because it relied
on an impermissible factor under 18 U.S.C. § 3583 to impose its sentence.
When imposing supervised release, the district court is instructed by § 3583 to




      3 United States v. Wooley, 740 F.3d 359, 367 (5th Cir. 2014).
      4 United States v. Kippers, 685 F.3d 491, 497 (5th Cir. 2012).
      5 Id.

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                                    No. 15-30470
consider certain sentencing factors. 6 Permissible factors for the district court
to consider are a defendant’s history and characteristics, need for deterrence,
and need for educational or vocational training. 7
      Notably absent from the list of permissible factors that a district court
may consider when imposing supervised release is “the seriousness of the
offense, [the need] to promote respect for the law, and [the need] to provide just
punishment for the offense.” 8 This Court in United States v. Miller, 634 F.3d
841 (5th Cir. 2011), held that seriousness of the offense, promoting respect, and
providing punishment cannot be considered as factors to impose sentence for
revocation of supervised release. However, the district court commits a
sentencing error only “when an impermissible consideration is a dominant
factor in the court’s revocation sentence.” 9
      Here, the district court erred because its dominant consideration when
imposing supervised release on Handy was an impermissible factor.
Specifically, the district court changed its mind and imposed supervised
release because of Handy’s disrespect, which is evidenced by its statement that
Handy’s “failure to respect the law” is the “kind of attitude which tells me I am
going to put you on another term of supervised release.” Because the court
relied primarily on an impermissible reason when ordering supervised release,
its sentence was error.
      Second, Handy argues that the district court’s error in relying on an
improper sentencing factor to impose supervised release was plain. Legal error
is plain where it is “clear or obvious, rather than subject to reasonable



      6   18 U.S.C. § 3583.
      7   18 U.S.C. § 3583 (incorporating by reference 18 U.S.C. § 3553(a)(1), (a)(2)(B),
(a)(2)(D)).
        8 18 U.S.C. § 3583 (incorporating by reference 18 U.S.C. § 3553(a)(1), (a)(2)(A),

(a)(2)(D)).
        9 United States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015).

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                                      No. 15-30470
dispute.” 10 Following Miller, it is clear that a district court cannot rely on the
sentencing factor of punishment or lack of respect. Because the court
committed an error by relying on an improper sentencing factor under 18
U.S.C. § 3583, its error was plain.
       Finally, Handy argues that the district court’s reliance on an
impermissible sentencing factor to impose supervised release affected his
substantial rights. “A sentencing error affects a defendant’s substantial rights
if he can show a reasonable probability that, but for the district court’s error,
he would have received a lesser sentence.” 11 In this case, the district court’s
error in relying on an impermissible sentencing factor affected Handy’s
substantial rights. Handy almost certainly would have received a lesser
sentence – one without supervised release – had he not been disrespectful and
interrupted the district court.
       Even if Handy satisfies the first three prongs of plain-error review, this
does not end the inquiry. This Court has “discretion to remedy [an] error –
discretion which ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” 12 “This circuit
has repeatedly emphasized that even when we find that the first three factors
have been established, this fourth factor is not automatically satisfied.” 13
       Errors that justify the exercise of our discretion “are ones that would
shock the conscience of the common man, serve as a powerful indictment
against our system of justice, or seriously call into question the competency or
integrity of the district judge.” 14 Therefore, “whether a sentencing error



       10 Puckett v. United States, 556 U.S. 129, 135 (2009).
       11 Rivera, 784 F.3d at 1018 (quoting United States v. John, 597 F.3d 263, 284-85 (5th
Cir. 2010) (internal alteration marks omitted)).
       12 Id. (quoting Puckett, 556 U.S. at 135).
       13 Wooley, 740 F.3d at 369.
       14 United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014).

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                                          No. 15-30470
seriously affects the fairness, integrity, or public reputation of the judicial
proceedings is dependent upon the degree of the error and the particular facts
of the case.” 15
       In a closely analogous case, United States v. Rivera, 784 F.3d 1012 (5th
Cir. 2015), this Court held that a sentencing error following revocation of
supervised release did not impugn the integrity of judicial proceedings even
though the district court imposed its sentence for an impermissible reason. The
defendant had violated supervised release by reentering the United States
illegally and committing a murder. 16 Her supervised release was revoked
based on the murder conviction, and the court sentenced her to a five-year
prison term. 17 We agreed that the district court’s reasons for the sentence –
seriousness of the offense and need for punishment – are impermissible factors
under 18 U.S.C. § 3583. 18
       However, we affirmed the sentence and reasoned that the error did not
warrant the exercise of our discretion because:
              [Defendant] did not brief the fourth prong . . . except
              to argue that Miller error automatically warrants
              correction on plain-error review. We must reject this
              per se fourth-prong argument. Rivera’s proffered
              approach would collapse the fourth prong into the first
              three and would contravene binding precedent that
              directs us to consider the facts of each case before
              finding that the fourth prong has been met. Thus, in
              asking us to exercise our discretion, Rivera points to
              nothing beyond the district court’s error and the
              increase in her sentence that the error may have
              caused. 19



       15 John, 597 F.3d at 288.
       16 Rivera, 784 F.3d. at 1015-16.
       17 Id.
       18 Id. at 1017-18.
       19 Id. at 1018-19.

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                                       No. 15-30470
       Here, as in Rivera, Handy failed to brief his argument that the district
court’s sentencing error impugns the integrity of judicial proceedings. Handy
makes only a conclusory statement that “the unlawful imposition of the
additional year of supervised release seriously affects the fairness, integrity,
and public reputation of judicial proceedings.” Effectively, Handy makes the
same conclusory argument that we rejected in Rivera – that the district court
made a sentencing error that led to an increased sentence. Also, like in Rivera,
we are satisfied that adding the supervised release term to Handy’s sentence
under these circumstances did not affect the fairness, integrity, and public
reputation of judicial proceedings.


                                             IV.
       For these reasons, we affirm the judgment of the district court. 20
       AFFIRMED.




       20Handy presented an additional argument that his sentence of supervised release
was actually imposed not for revocation but for contempt of court. However, the district court
repeatedly emphasized that it did not hold him in contempt, and Handy cited no precedent
that would allow us to construe it otherwise.
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                                  No. 15-30470


STEPHEN A. HIGGINSON, Circuit Judge, specially concurring:
      I concur in the majority’s opinion and plain error analysis, but write
separately just to note that the decision in United States v. Segura, 747 F.3d
323, 331 (5th Cir. 2014), which we cite for the proposition that errors that
justify the exercise of our discretion “are ones that ‘would shock the conscience
of the common man, serve as a powerful indictment against our system of
justice, or seriously call into question the competence or integrity of the district
judge,’” overlooked exact attribution for its reformulation of the fourth prong.
See United States v. Escalante-Reyes, 689 F.3d 415, 435 (5th Cir. 2012) (en
banc) (dissenting opinion).




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