     Case: 16-60282      Document: 00513903474         Page: 1    Date Filed: 03/08/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-60282                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
cons w/16-60283                                                             March 8, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

ROBERT SCOTT ANTRIM,

              Defendant - Appellant




                  Appeals from the United States District Court
                     for the Southern District of Mississippi
                            USDC No. 1:08-CR-141-1
                             USDC No. 1:08-CR-79-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Robert Scott Antrim appeals his sentence of three consecutive 24-month
terms of imprisonment for violation of the terms of his supervised release for
three prior convictions for bank robbery. Antrim argues that the district court
plainly erred by considering factors listed in 18 U.S.C. § 3553(a)(2)(A) and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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failing to consider mitigating evidence when imposing these sentences.
Finding no error, we AFFIRM.
                                       I.
      In April 2009, Antrim pleaded guilty to three counts of bank robbery in
violation of 18 U.S.C. § 2113(a).    The district court sentenced Antrim to
concurrent 56-month terms in prison on each count, concurrent three-year
terms of supervised release on each count, and ordered him to pay fines and
restitution.   On April 19, 2016, while serving his concurrent terms of
supervised release, a revocation petition was filed alleging that Antrim had
violated the terms of his supervised release by robbing banks on July 25 and
27, 2015 in Texas and Mississippi. Antrim admitted the allegations set forth
in the petition during a revocation hearing on May 2, 2016.
      The probation office prepared a guidelines calculation letter classifying
Antrim’s conduct as Grade A violations and his previous criminal history as
Category III. Under U.S.S.G. § 7B1.4, the policy range of imprisonment was
18 to 24 months on each count, with a statutory maximum term of
imprisonment of 24 months on each count. The term of supervised release was
not more than three years under 18 U.S.C. § 3583(b)(2).
      Antrim’s defense counsel offered the following mitigation evidence.
Antrim was sentenced to two concurrent sentences of 188 months for the 2015
bank robberies giving rise to the revocation petition, to run consecutive to any
revocation sentence. The 188-month sentences were at the top of the guideline
range for the robbery offenses. Antrim’s counsel also emphasized that the 2015
bank robberies were linked to Antrim’s drug use, but he had become sober since
his arrest. Antrim’s mother was ill and likely would not survive Antrim’s
lengthy prison term.
      In ordering Antrim’s revocation sentences, the district court reasoned:


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             In this case, the Court finds the following factors are
      relevant: The need to promote respect for the law, to afford
      adequate deterrence to criminal conduct, to protect the public, and
      to control the offender’s conduct. And while the Court is mindful
      of the fact that the defendant has been sentenced for the
      underlying bank robberies themselves to concurrent terms of 188
      months, which represented the top of the guideline range, and
      further, the other family characteristics that have been mentioned
      by counsel here today, I also am aware that, of course, his criminal
      history is not insignificant. He was a Category III at the time of
      initial sentencing. And then he is – the character of his violations
      here are precisely the same type of violations or offenses for which
      he was originally indicted, convicted and sentenced.
            The conduct of the defendant reflects a lack of respect for the
      law and for the rules of the court in terms of supervision. Mr.
      Antrim has clearly not been deterred, and the public needs to be
      protected from this type of conduct. So those are all factors the
      Court finds pertinent here.
      The district court sentenced Antrim to consecutive terms of 24 months
of imprisonment for each of his three counts of conviction. These sentences
were to be served consecutively to Antrim’s two 188-month sentences for his
convictions for the underlying conduct.      In ordering these sentences, the
district court noted “the serious nature of these violations.”
      At the hearing, Antrim’s counsel objected to the three consecutive
sentences on the grounds of reasonableness. Antrim appeals, arguing the
district court considered improper factors listed in 18 U.S.C. § 3553(a)(2)(A)
including seriousness of the offense and respect for the law, failed to account
for mitigating factors, and erred in balancing the statutory sentencing factors
in sentencing Antrim to three consecutive 24-month sentences.




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                                              II.
       Revocation sentences are reviewed under “the plainly unreasonable
standard.” 1    However, the government urges and Antrim concedes that a
review for plain error is appropriate because Antrim made no specific objection
to the district court’s reliance on impermissible factors during the revocation
hearing. 2 Antrim merely objected to the sentence as “being unreasonable.”
       Under the plain error standard, Antrim must show a forfeited error that
is clear or obvious and that has affected his substantial rights. 3 If Antrim is
successful, this Court may exercise discretion to correct the error, but only if it
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” 4
                                             III.
       18 U.S.C. § 3583(e) provides in pertinent part:
       The court may, after considering the facts set forth in section
       3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
       (a)(7) . . . revoke a term of supervised release, and require the
       defendant to serve in prison all or part of the term of supervised
       release authorized by statute for the offense that resulted in such
       term of supervised release without credit for time previously
       served on postrelease supervision, if the court . . . finds by a
       preponderance of the evidence that the defendant violated a
       condition of supervised release, except that a defendant whose
       term is revoked under this paragraph may not be required to serve
       on any such revocation more than 5 years in prison if the offense
       that resulted in the term of supervised release is a class A
       felony…. 5
As we have observed, this statute requires district courts to consider certain



       1 United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).
       2 See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
       3 United States v. Puckett, 556 U.S. 129, 135 (2009) (citing United States v. Olano, 507

U.S. 725, 732-34 (1993)).
       4 Id. (alteration in original) (quoting Olano, 507 U.S. at 736).
       5 18 U.S.C. § 3583(e)(3).

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§ 3553 factors in a revocation hearing, but specifically excludes consideration
of § 3553(a)(2)(A). 6 We have held that such a “deliberate omission” makes it
improper for a district court to rely on the factors listed in § 3553(a)(2)(A) for
the modification or revocation of a supervised release term. 7 The district court
is therefore prohibited from imposing a sentence based on “the seriousness of
the offense, to promote respect for the law, [or] to provide just punishment for
the offense.” 8 And we have made it clear that “a sentencing error occurs when
an impermissible consideration is a dominant factor in the court’s revocation
sentence, but not when it is merely a secondary concern or an additional
justification for the sentence.” 9
       Our primary inquiry is whether the district court relied on an
impermissible consideration as a dominant factor in sentencing Antrim during
the revocation hearing. Antrim argues that the district court placed dominant
consideration on the seriousness of the offense and the need to promote respect
for the law.
       In support, Antrim points to the revocation hearing transcript quoted
above where the district court twice mentions “respect for the law” among other
factors considered. Antrim also notes that the district court mentioned the
“serious nature of these violations” when sentencing him to three consecutive
maximum sentences. Antrim argues that because the district court expressly
considered both the seriousness of the offense and promoting respect for the
law, the district court erred by considering impermissible factors under
§ 3553(a)(2)(A).



       6 Miller, 634 F.3d at 844.
       7 United States v. Rivera, 784 F.3d 1012, 1016-17, reh’g denied, 797 F.3d 307 (5th Cir.
2015) (quoting Miller, 634 F.3d at 844) (internal quotation marks omitted).
       8 18 U.S.C. § 3553(a)(2)(A).
       9 Rivera, 784 F.3d at 1017 (citing United States v. Walker, 742 F.3d 614, 616 (5th Cir.

2014)) (discussing Miller, 634 F.3d at 844).
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       We have held that recitation of these impermissible factors “without
more does not result in plain error.” 10 The district court also expressly relied
on a number of permissible factors: deterring criminal conduct, 11 protecting
the public, 12 and the defendant’s conduct and prior criminal history. 13 We have
held that a district court does not plainly err in referencing factors listed in
§ 3553(a)(2)(A) when the district court’s comments are made in the context of
the defendant’s failure to comply with his obligations under the terms of his
supervised release rather than the context of the underlying offense. 14
       We find this case most analogous to our decision in United States v.
Ramsdale. 15 There, the district court cited all three impermissible factors
under § 3553(a)(2)(A) and several other permissible factors in its sentencing
decision. 16 We held that because the impermissible factors were mentioned
among many, they did not predominate. 17                   Further, the district court’s
reasoning focused on the defendant’s failure to comply with his supervised
release, not his underlying convictions. 18




       10  United States v. Ramsdale, 658 F. App’x 199, 200 (5th Cir. 2016) (finding that the
district court’s mention of § 3553(a)(2)(A) factors did not make those factors dominant in the
court’s sentencing decision); see Walker, 742 F.3d at 616.
        11 18 U.S.C. § 3553(a)(2)(B).
        12 Id. § 3553(a)(2)(C).
        13 Id. § 3553(a)(1).
        14 See United States v. Ellsworth, 490 F. App’x 663, 664 (5th Cir. 2012) (finding that

the district court’s use of the term “punishment” referenced the need to punish the defendant
for violating the terms of his supervised release, not the underlying offense); United States v.
LeBoeuf, 435 F. App’x 359, 361-62 (5th Cir. 2011) (noting the difference between the district
court’s use of the word “punishment” in reference to the defendant’s violation of his release
conditions and “just punishment” for the conduct underlying the revocation, a prohibited
factor); see also Rivera, 797 F.3d at 308 (recognizing the distinction between punishment for
the underlying offense and sanctioning the violations resulting in revocation of supervised
release).
        15 658 F. App’x at 200.
        16 Id. at 200-01.
        17 Id.
        18 Id. at 201.

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       Here, the district court mentioned the “need to promote respect for the
law” and the “serious nature of these violations” in the context of Antrim’s lack
of respect “for the rules of the court in terms of supervision” because his
conduct was not deterred by the terms of his supervised release. The district
court’s mere mention of the two impermissible factors during Antrim’s
sentencing does not make them dominant factors in the district court’s decision
and does not amount to plain error. Further, the district court’s primary
concern was Antrim’s lack of adherence to the terms of his supervised release,
not the underlying offenses prompting the revocation hearing, so the district
court’s reasons do not constitute plain error.
       We recognize that these types of cases present fact-specific inquiries.
Another panel has reversed a defendant’s sentence to correct an error where
the district court relied solely on impermissible factors. 19 Some panels have
found that district courts erred in relying primarily on impermissible factors,
but did not exercise discretion to correct the error. 20 The instant case is
distinguishable from both of these scenarios because the district court’s
reference to impermissible considerations was not a dominant factor in its
reasons for Antrim’s sentence.
       Antrim also argues that the district court failed to consider mitigating
factors and appropriately balance those factors. The district court specifically



       19  United States v. Hudson, 457 F. App’x 417, 419-20 (5th Cir. 2012) (reversing the
defendant’s revocation sentence where the court discussed only the seriousness of the offense
and punishment, two impermissible factors listed in § 3553(a)(2)(A)).
        20 United States v. Pinner, 655 F. App’x 205, 207 (5th Cir. 2016) (“Even assuming that

the district court plainly erred by making the § 3553(a)(2)(A) considerations a dominant
factor in imposing the revocation sentence and that this error affected Pinner’s substantial
rights, this court is not required to correct the forfeited error.”); United States v. Handy, 647
F. App’x 296, 301 (5th Cir. 2016) (following Rivera in finding that even though the district
court erred in considering impermissible factors, “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”).
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recited its consideration of mitigating factors during sentencing. 21 We find no
plain error in the district court’s consideration and balancing of the mitigating
factors.
      Therefore, we AFFIRM Antrim’s sentences.




      21 As noted previously, the district court stated,
      And while the Court is mindful of the fact that the defendant has been
      sentenced for the underlying bank robberies themselves to concurrent terms of
      188 months, which represented the top of the guideline range, and further, the
      other family characteristics that have been mentioned by counsel here today,
      I am also aware that, of course, his criminal history is not insignificant.
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