     Case: 10-10849     Document: 00511557814         Page: 1     Date Filed: 08/01/2011




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

                                                                            FILED
                                                                           August 1, 2011

                                       No. 10-10849                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

MATTHEW JAMES LEBOEUF,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:05-CR-184-1


Before KING, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
        Matthew James LeBoeuf appeals from his 24-month sentence following
revocation of his supervised release. He argues that the district court considered
an impermissible sentencing factor in 18 U.S.C. § 3553(a)(2)(A) as a basis for the
sentence. We AFFIRM the district court’s judgment.
                                     I. Background
        LeBoeuf was convicted of wire fraud in 2006 and sentenced to 18 months
in prison and three years of supervised release. The Government moved to

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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revoke his supervised release term in August 2010, alleging that LeBoeuf
committed the following violations of his conditions of release: (1) theft in the
amount of $500 to $1500 in Haltom City, Texas, for accepting payment to rebuild
a computer without doing the work or returning the computer; (2) issuing a bad
check in Dallas County, Texas; (3) failing to make restitution payments as
ordered and failing to provide the probation officer with requested financial
information; and (4) leaving the judicial district without permission of the court
or his probation officer.
      LeBoeuf pleaded true to all allegations except for the theft offense. The
district court then heard testimony from the victim of that offense and the police
officer who investigated it.    According to the victim’s testimony, LeBoeuf
accepted payment to rebuild a computer for the victim but did not perform the
work. When the victim complained to police, LeBoeuf attempted to give the
victim a different computer and a partial refund in the form of a check written
on a closed bank account. In addition to this evidence, LeBoeuf’s probation
officer, David Hernandez, testified about other instances of dubious business and
financial practices where LeBoeuf had reportedly accepted payments from other
individuals but failed to perform as promised.
      The district court found that all of the Government’s allegations were true
and that LeBoeuf had violated his conditions of supervised release. The court
then stated that it would “take into account in determining any punishment that
might be imposed the information that the witness [i.e., Probation Officer
Hernandez] has just offered.” Despite LeBoeuf’s request to remain on supervised
release, the district court revoked the release term. It then considered whether
restitution could be ordered as part of the revocation sentence in light of the
financial losses LeBoeuf caused while on supervised release.           The court
expressed a belief that such circumstances “ought to be considered as part of the



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                                   No. 10-10849

punishment,” but it ultimately decided that restitution was not available
because LeBoeuf had not been convicted of any new offenses.
      The advisory guideline sentencing range for the revocation was four to ten
months. The district court stated that this range was insufficient to address “the
concerns the Court should consider under 18 United States Code Section
3553(a).” The court explained that “[o]nce I consider all of those factors, I
believe a sentence of 24 months is a reasonable sentence that would be necessary
to adequately address those things.” The court therefore sentenced LeBoeuf to
24 months in prison to be followed by twelve months of supervised release.
      LeBoeuf now appeals, arguing that the district court’s references to
“punishment” during the revocation hearing show that the court improperly
considered the “just punishment” factor of § 3553(a)(2)(A).
                            II. Standard of Review
      We generally review sentences imposed upon the revocation of supervised
release under a “plainly unreasonable” standard. United States v. Miller, 634
F.3d 841, 843 (5th Cir. 2011), petition for cert. filed, (U.S. May 27, 2011) (No. 10-
10784).    Here, however, LeBoeuf made only a general objection to the
reasonableness of his sentence and did not specifically argue that the district
court had considered an improper sentencing factor. We therefore review the
sentence for plain error. See United States v. Dunigan, 555 F.3d 501, 506 (5th
Cir. 2009).
      Plain error requires the appellant to show (1) an error (2) that was clear
or obvious and (3) that affected his substantial rights. United States v. Davis,
602 F.3d 643, 647 (5th Cir. 2010). If the appellant makes that showing we have
discretion to remedy the error if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id.




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                                III. Discussion
      LeBoeuf contends that his sentence is unreasonable because the district
court improperly considered the need for the sentence to reflect “just
punishment” as provided in §3553(a)(2)(A). Subsection §3553(a)(2)(A) ordinarily
allows a court to consider the need for a sentence to reflect “the seriousness of
the offense, to promote respect for the law, and to provide just punishment for
the offense.” §3553(a)(2)(A). Although this factor may be considered pursuant
to § 3553(a) when imposing an original sentence, in this circuit it is forbidden
from consideration when imposing a revocation sentence. See Miller, 634 F.3d
at 844. Revocation sentences are governed by 18 U.S.C. § 3583(e), which
outlines the specific factors of § 3553(a) that a district court must consider. See
Miller, 634 F.3d at 844. Because § 3583(e) does not reference § 3553(a)(2)(A), we
recently held that “it is improper for the district court to rely on §3553(a)(2)(A)
for the modification or revocation of a supervised release term.” Id.
      We reject LeBoeuf’s argument that the district court committed reversible
error in imposing his revocation sentence. First, it is not clear that the district
court even considered § 3553(a)(2)(A). Nowhere did the district court specifically
reference that subsection or “just punishment.” Although the court mentioned
“punishment” several times during the revocation hearing, we are not convinced
that the court was referring to the need for the sentence to reflect “just
punishment” as contemplated by § 3553(a)(2)(A). See United States v. Miqbel,
444 F.3d 1173, 1182 (9th Cir. 2006) (discussing the difference between district
court sanctioning a defendant for violating his supervised release terms and
punishing the defendant for conduct underlying the revocation). When the court
first mentioned “punishment” after Probation Officer Hernandez’s testimony, the
court appeared to be considering the appropriate disposition upon finding a
violation of LeBoeuf’s release conditions. See § 3583(e)(4) (providing that district
court has discretion to continue a defendant’s supervised release after a violation

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rather than revoke the release term). It immediately invited defense counsel to
speak about whether there should be a revocation, and there is no error in the
court deciding that LeBoeuf’s violations and conduct as testified by Hernandez
warranted revocation and imprisonment as opposed to a continuance on release.
Furthermore, the district court’s other remarks during the hearing show that its
various references to “punishment” did not invoke § 3553(a)(2)(A). The court
explained that the 24-month sentence it imposed “adequately addresses the
factors the Court should consider,” and also that those factors were not reflected
in the advisory guideline range. The court’s references to the factors that
“should” be considered thus indicate that the court limited its decision to the
§ 3553(a) factors enumerated in § 3583(e). LeBoeuf has not shown any error
under the first prong of the plain error test.
      Moreover, even assuming, arguendo, that the district court improperly
considered the punishment factor of § 3553(a)(2)(A), LeBoeuf cannot meet the
second prong of plain error review because the error was not clear or obvious.
At the time of the district court proceedings, our own circuit law as to whether
the court could consider § 3553(a)(2)(A) when imposing a revocation sentence
was unsettled, see, e.g., United States v. Rodriguez, 369 F. App’x 608, 608 (5th
Cir. 2010) (declining to decide the issue), and there was a split among our sister
circuits. Compare, e.g., Miqbel, 444 F.3d at 1182 (holding that reliance on
§ 3553(a)(2)(A) for a revocation sentence is improper) with United States v.
Lewis, 498 F.3d 393, 399–400 (6th Cir. 2007) (holding that district court may
consider § 3553(a)(2)(A) and noting circuit split on the issue). Therefore, any
error by the district court could not be clear or obvious. See United States v.
Salinas, 480 F.3d 750, 759 (5th Cir. 2007) (holding that when our circuit’s law
is unsettled and other federal circuits have reached divergent conclusions the
claimed error could not be clear or obvious under the second prong of the plain
error test); United States v. Hernandez, 2011 WL 1057576, at *1 (5th Cir. Mar.

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23, 2011) (unpublished) (holding that defendant could not show district court’s
alleged error in considering § 3553(a)(2)(A) when imposing a revocation sentence
was clear or obvious under plain error review). LeBoeuf therefore has not shown
reversible error.
                               IV. Conclusion
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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