     Case: 11-30338     Document: 00511592176         Page: 1     Date Filed: 09/02/2011




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

                                                                            FILED
                                                                        September 2, 2011

                                       No. 11-30338                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

ROBERT LEE JONES,

                                                   Defendant - Appellant



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:02-CR-174-1


Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
        Robert Lee Jones appeals his 24-month term of imprisonment imposed
following the revocation of his supervised release.               Jones argues that the
sentence of imprisonment is excessive for a non-violent offender who suffers from
Stage IV Hodgkin’s lymphoma. Finding no error, we affirm
                                              I.
        Jones pled guilty in 2002 to social security fraud, bank fraud, and access
device fraud, in violation of 18 U.S.C. §§ 1028(a)(7), 1344, and 1029(a)(2),

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30338

respectively. On each count, the district court sentenced Jones to eighty-seven
months of imprisonment and three years of supervised release, with the sentence
for each count to be served concurrently.1
       Jones began his term of supervised release on August 20, 2010. On
September 30, his probation officer petitioned the district court to issue a
violator’s warrant for his failure to report to the Probation Office for the Eastern
District of Louisiana within 72 hours of release from imprisonment. Jones’s
whereabouts remained unknown until personnel of the Gwinnett County,
Georgia Sheriff’s Office arrested and charged him with forgery and two counts
of credit card fraud on December 21. Jones pled guilty to those charges on
February 15, 2011. He was sentenced to thirty days of imprisonment and four
years and eleven months of probation as to the forgery charge, and three years
probation as to the credit card fraud charges, with the sentence for each count
to be served concurrently. On March 16, 2011, the Government moved to revoke
Jones’s supervised release, charging him with violating the conditions of his
supervised release by failing to report within 72 hours of release from
imprisonment and by committing the Georgia offenses.
       The district court held a revocation hearing on March 29. The court
informed Jones that his calculated advisory guideline range under the United
States Sentencing Guidelines (“Sentencing Guidelines”) was eighteen to twenty-
four months of imprisonment on each count of conviction,2 and that the statutory


       1
         The district court also ordered Jones to pay restitution to several financial institutions
in the amount of $154,054.19, to make complete disclosure of his personal and business
finances and submit to an audit of his financial records, to refrain from incurring new credit
charges or opening additional lines of credit without approval from the probation office, and
to participate in an orientation and life skills program as directed by the probation office.
       2
        Under the advisory policy statements in Chapter 7 of the Sentencing Guidelines,
Jones’s violations were Grade B violations. See U.S.S.G. § 7B1.1(a)(2). Because Jones’s
criminal history category was V, his advisory guideline range was eighteen to twenty-four
months of imprisonment on each count of conviction. See U.S.S.G. § 7B1.4(a).

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                                  No. 11-30338

maximum terms of imprisonment under 18 U.S.C. § 3583(e)(3) were two years
as to the social security fraud and access device fraud charges and three years
as to the bank fraud charge. The district court further informed Jones that it
could reimpose supervised release of up to thirty-six months as to the social
security fraud and access device fraud charges and up to sixty months as to the
bank fraud charge, less any term of imprisonment imposed on each count. See
18 U.S.C. § 3583(h).
      Jones stipulated to the allegations at the hearing. He explained the
reasons for his failure to report and the circumstances underlying his recent
Georgia convictions. During his allocution, he confirmed that he suffered from
numerous health problems, including Stage IV Hodgkin’s lymphoma, and that
he did not expect to live through completion of his sentence. He requested only
that the court impose a sentence it felt was appropriate, order the last six
months to be served on home confinement, designate that he serve his
imprisonment at the federal medical center in Lexington, Kentucky, and order
his immediate designation to the Bureau of Prisons so he could restart treatment
for his medical conditions.
      The district court revoked Jones’s supervised release. On each count, it
imposed a 24-month term of imprisonment, with the sentence for each count to
be served concurrently. It also imposed a 1-year term of supervised release as
to the social security fraud and access device fraud charges, and a 3-year term
of supervised release as to the bank fraud charge, all to be served concurrently.
The court reasoned that the sentence was appropriate because Jones had “a long
history of these financial fraud-type convictions,” and he was “no stranger to
federal procedures and reporting requirements.” His failure to report, in the
district court’s view, was “obvious and inexcusable,” though for mitigation
purposes, it accounted for the fact that Jones had sent a letter to a then-retired
Probation Officer requesting an extension to report. The court also explained

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                                       No. 11-30338

that his health was a factor it had considered, as it did for every defendant.
Although it declined to impose consecutive revocation sentences, the district
court imposed the maximum advisory guideline sentence because of Jones’s
“inexcusable” “continuation and pattern of behavior.” Jones timely appealed.
                                             II.
       Jones concedes that because he did not raise an objection to the 24-month
term of imprisonment in the district court, plain error review applies.3 Had
Jones properly preserved his objection, we would review to determine whether
the sentence was plainly unreasonable. United States v. Miller, 634 F.3d 841,
843 (5th Cir. 2011), petition for cert. filed, No. 10-10784 (May 27, 2011). Because
Jones did not object, however, we review under a more deferential standard for
plain error. United States v. Davis, 602 F.3d 643, 646–47 (5th Cir. 2010); United
States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007). To meet this standard of
review, Jones must first show (1) a forfeited error, (2) that is clear or obvious,
and (3) that affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 129 S.Ct. 1423, 1429 (2009). If Jones makes all of these showings, then we
have the discretion to correct the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
                                             III.
       After revoking a defendant’s supervised release, a district court may
impose any sentence that falls within the statutory maximum term allowed for
the revocation sentence, but it must consider the factors enumerated in 18
U.S.C. § 3553(a) and the policy statements in Chapter 7 of the Sentencing
Guidelines before doing so. 18 U.S.C. § 3583(e); Davis, 602 F.3d at 646; United
States v. McKinney, 520 F.3d 425, 427–28 (5th Cir. 2008). Jones does not
suggest that the district court erred, procedurally or otherwise, in fashioning the

       3
        At the revocation hearing, Jones objected only to the district court’s reimposition of
supervised release under 18 U.S.C. § 3583(h).

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                                  No. 11-30338

24-month term of imprisonment. Instead, he argues that the sentence is too long
for a non-violent offender who has Stage IV Hodgkin’s lymphoma. He also
distinguishes the scale of his recent Georgia fraud convictions from those
underlying his 2002 federal convictions.
      Here, the district court imposed a sentence on each count that was not
only within the statutory maximum term of imprisonment, but also within the
advisory guideline range of eighteen to twenty-four months. In McKinney, this
court upheld, under the less stringent “unreasonable” and “plainly
unreasonable” standards of review, a revocation sentence that was within the
advisory guideline range and the statutory maximum term of imprisonment.
McKinney, 520 F.3d at 432; see also United States v. DeLeon-Fuentes, 310 F.
App’x 686, 687 (5th Cir. 2009) (affirming on plain error review revocation
sentence that fell within the statutory maximum term of imprisonment and
within the range recommended by the Sentencing Guidelines). In the instant
case, the district court heard from defense counsel and Jones regarding the
seriousness, extent, and required treatment of his medical problems, and
expressly announced to Jones that it considered those factors in imposing every
sentence. The court, however, expressed its concern regarding Jones’s continued
pattern of fraudulent behavior and observed that Jones was aware of the federal
procedures and reporting requirements. After taking these factors into account,
the court declined to impose consecutive revocation sentences – as it had been
considering – and instead imposed concurrent sentences on each count within
the statutory maximum term of imprisonment and the advisory guideline range.
Jones has not shown that the district court committed any error, much less error
that is plain. See Jones, 484 F.3d at 792. Because Jones has not satisfied even
the first prong of plain error review, the district court’s judgment must stand.
See Puckett, 129 S.Ct. at 1429.
                                                                  AFFIRMED.

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