     Case: 16-10926        Document: 00514067578       Page: 1    Date Filed: 07/11/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-10926
                                                                                  Fif h Circuit

                                                                                FILED
                                  Summary Calendar                          July 11, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

LAMONT FLOYD DEVAUGHN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:07-CR-4-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Lamont      Floyd     Devaughn      appeals     the    18-month       sentence             of
imprisonment imposed following the revocation of his supervised release. 1 He
argues that the district court failed to sufficiently articulate its reasons for


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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

       1  In the same proceeding, the district court sentenced Devaughn to a consecutive
revocation term of 24 months of imprisonment in his escape case. Devaughn does not
challenge the 24-month sentence or the consecutive nature of the revocation sentences. Thus,
he has waived any argument he may have made by failing to brief these issues. See United
States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).
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imposing a sentence above the range of imprisonment set forth in the non-
binding policy statements found in U.S.S.G. § 7B1.4. He also complains that
the sentence does not account for “multiple” factors under 18 U.S.C. § 3553(a)
that should have received significant weight and claims that the district court
improperly considered unproven allegations in the Supervised Release
Violation Report (SRVR).
      The parties dispute whether counsel’s objection to the sentence during
the revocation hearing sufficiently preserved the issues on appeal and whether
this court should apply the “plainly unreasonable” or “plain error” standard of
review. Although Devaughn objected when the district court announced the
revocation sentences on the ground that they were “not within the policy
guidelines,” he did not object for the reasons that he now asserts. As such, our
review is for plain error. See United States v. Neal, 578 F.3d 270, 272 (5th Cir.
2009).
      When a district court imposes a revocation sentence outside of the
Guidelines, it must provide some explanation for the sentence. Rita v. United
States, 551 U.S. 338, 357-58 (2007); see also § 3553(c). The failure to do so
constitutes clear and obvious error under plain error review. United States v.
Kippers, 685 F.3d 491, 498 (5th Cir. 2012).
      Here, the district court was aware of the nature of Devaughn’s
supervised release violations, and it understood the applicable guideline range
and the statutory maximum. The court heard defense counsel’s argument for
a sentence within the advisory guideline range, and it considered Devaughn’s
allocution. After imposing the 18-month sentence, the district court explained
the reasons for the sentence imposed, stating that the sentence was necessary
to “protect the public from future criminal acts of the defendant” and to “afford
adequate deterren[ce]” to criminal conduct. The court’s explanation, which



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echoed the relevant § 3553(a) factors, was sufficient to communicate the court’s
reasons for imposing a non-guidelines sentence. See Rita, 551 U.S. at 356.
Devaughn has failed to show error with respect to this issue. See United States
v. Whitelaw, 580 F.3d 256, 260 (5th Cir. 2009).
      Devaughn also makes a vague due process argument that the district
court improperly based its above-guideline sentence on allegations in the
SRVR that “were not proved.” To the extent that he means that the district
court’s sentence was influenced by the pending state charges for assault and
burglary of a habitation as set out in the SRVR, but not pursued as a basis for
revocation, he has failed to demonstrate plain error. See Whitelaw, 580 F.3d
at 260. The court imposed its above-guideline sentence after finding that
Devaughn violated the conditions of his supervised release by using
methamphetamine and by failing to comply with the drug testing requirement.
The court did not refer to Devaughn’s other alleged criminal conduct or give
any indication that its sentence was influenced by such conduct.
      Devaughn also argues that his revocation sentence was substantively
unreasonable because the district court failed to account for the fact that he
“did not make any excuses for his actions [or] deny the allegations” related to
his supervised release violations. This argument is without merit, as the
record clearly demonstrates that the district court considered Devaughn’s plea
of true to the allegations regarding his drug use, as well as his statement that
he “accept[ed] full responsibility for [his] actions,” (i.e., “doing [] drugs while []
on supervised release”). To the extent that Devaughn argues that the district
court should have considered the need for the sentence to provide Devaughn
with drug treatment, such omission does not constitute plain error. In fact, a
district court may not fashion a sentence so as to allow a defendant “to
complete a treatment program or otherwise to promote rehabilitation.” Tapia



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v. United States, 564 U.S. 319, 335 (2011). Devaughn has failed to show any
error, much less plain error, with respect to his revocation sentence.
See Whitelaw, 580 F.3d at 260.
     The judgment of the district court is AFFIRMED.




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