     Case: 10-60274 Document: 00511316402 Page: 1 Date Filed: 12/08/2010




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

                                                 FILED
                                                                          December 8, 2010
                                    No. 10-60274 c/w
                                     No. 10-60286                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DAVID B. MULCAHY,

                                                   Defendant-Appellant




                   Appeals from the United States District Court
                      for the Southern District of Mississippi
                               USDC No. 1:10-CR-9-1
                              USDC No. 1:02-CR-97-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       David B. Mulcahy appeals the sentence imposed following the revocation
of his supervised release subsequent to his convictions for possession of
ammunition by a convicted felon and bank fraud. The district court revoked
Mulcahy’s supervised release in both cases, and it sentenced Mulcahy to 24
months of imprisonment in the possession of ammunition by a convicted felon

       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-60274 Document: 00511316402 Page: 2 Date Filed: 12/08/2010

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                                  No. 10-60286

case and 12 months of imprisonment in the bank fraud case, the sentences to be
served consecutively for a total sentence of 36 months of imprisonment.
      Mulcahy argues that the district court erred because it failed to provide
sufficient reasons for the sentence. He maintains that all of his violations were
Grade C violations, making the sentence an upward variance from the guidelines
sentence range, requiring the district court to provide detailed reasons for the
sentence. He also contends that the district court was required to provide
reasons for the sentence in the written judgment but did not.
      While Mulcahy objected to the substantive reasonableness of the sentence
in the district court, he did not object to the sufficiency of the reasoning provided
by the district court. Accordingly, we review this issue for plain error only. See
United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To show plain
error, Mulcahy must show a forfeited error that is clear or obvious and that
affects his substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). If he makes such a showing, we have the discretion to correct the error
but will do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
      Assuming arguendo that the district court committed clear or obvious
error by not providing a sufficient explanation for the sentence, Mulcahy has not
shown that the error affected his substantial rights. The district court revoked
Mulcahy’s supervised release after Mulcahy admitted to multiple violations and
the court heard evidence regarding other violations. Thus, Mulcahy has not
shown that his ability to appeal his substantive sentence has been affected, and
our ability to review the sentence has not been affected. See Whitelaw, 580 F.3d
at 263-64. Additionally, Mulcahy has not shown that his sentence would have
been different if the district court provided a more extensive explanation for the
sentence. Accordingly, Mulcahy has not shown that the district court’s failure




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to provide specific reasons for the sentence affected his substantial rights, and
he has, therefore, failed to show reversible plain error. See id. at 263-65.
      Mulcahy argues that the sentence was substantively unreasonable. He
maintains that his violations were administrative Grade C violations, that the
advisory guidelines range in the possession of ammunition case was 6-12 months
of imprisonment, and that the advisory guidelines range in the bank fraud case
was 7-13 months of imprisonment. He contends that the evidence supporting
the violations to which he did not plead guilty was insufficient. He maintains
that the 36-month sentence was an unreasonable upward variation of 11 months
from the top of the advisory guidelines range.
      We review revocation sentences under “(a) both the ‘plainly unreasonable’
and the Booker unreasonableness standards of review or (b) the more exacting
Booker unreasonableness standard.” United States v. McKinney, 520 F.3d 425,
428 (5th Cir. 2008).
      On revocation of supervised release, the district court may impose any
sentence that falls within the statutory maximum term authorized.              See
§ 3583(e)(3). Assuming arguendo that all of Mulcahy’s violations were Grade C
violations, the total sentence of 36 months of imprisonment was 11 months
above the top of the advisory guidelines range and well within the statutory
maximum.     Revocation sentences exceeding the guidelines range but not
exceeding the statutory maximum have been upheld as a matter of routine
against challenges that the sentences were substantively unreasonable. See
Whitelaw, 580 F.3d at 265.      Furthermore, while Mulcahy argues that his
violations were merely administrative violations, he pleaded guilty to five
different violations, including the use of cocaine. Accordingly, Mulcahy has not
shown that the sentence was unreasonable or plainly unreasonable. See id.
      AFFIRMED.




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