     Case: 15-10329       Document: 00513291921         Page: 1     Date Filed: 12/02/2015




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

                                     No. 15-10329                                 FILED
                                   Summary Calendar                        December 2, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ROBERT PATRICK SHIREY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 7:05-CR-16-11


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Robert Patrick Shirey challenges the 36-month sentence imposed
following revocation of supervised release for his conviction in 2006 for
conspiracy to manufacture, distribute, and possess with intent to distribute,
500 grams or more of a mixture containing methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii).           Shirey contends his sentence,
which exceeds the range provided in the policy statement of the Sentencing


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-10329

Guidelines, is procedurally unreasonable because the court did not adequately
explain the reasons for the upward variance. He also challenges the sentence’s
substantive reasonableness, asserting the court failed to take into account his
need for drug rehabilitation and acceptance of responsibility.
      Post-Booker, the Guidelines are advisory only, and a properly preserved
objection to an ultimate sentence is reviewed for reasonableness.          Gall v.
United States, 552 U.S. 38, 51 (2007). Booker, however, concerned a Guidelines
sentence imposed pursuant to a conviction, not a violation of supervised
release.   United States v. Miller, 634 F.3d 841, 842–43 (5th Cir. 2011).
Therefore, even post-Booker, revocation sentences are reviewed under the
plainly-unreasonable standard of 18 U.S.C. § 3742(a)(4). Id. at 843. As Shirey
concedes, he did not object to the sentence in district court; accordingly, review
is only for plain error. E.g., United States v. Warren, 720 F.3d 321, 332 (5th
Cir. 2013); United States v. Whitelaw, 580 F.3d 256, 259–60 (5th Cir. 2009).
Under this standard, he must show a forfeited plain (clear or obvious) error
that affected his substantial rights. E.g., Puckett v. United States, 556 U.S.
129, 135 (2009). If he does so, our court has discretion to correct the reversible
plain error, but should do so only if it seriously affects the fairness, integrity,
or public reputation of the proceedings. Id. For each of the two issues, Shirey
has not shown the requisite clear or obvious error.
      In imposing the sentence, the court cited the nature and circumstances
of Shirey’s supervised-release violations, and the need for deterrence and
protection of the public. See 18 U.S.C. § 3553(a)(1), (2)(B)–(C). Additionally,
the court implicitly considered Shirey’s history and characteristics in imposing
the revocation sentence.     See § 3553(a)(1); Whitelaw, 580 F.3d at 262–65
(recognizing implicit consideration of the § 3553 factors is sufficient to satisfy




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                                 No. 15-10329

§ 3553(c)’s requirement the court provide reasons for an above-Guidelines
sentence).
      As for Shirey’s substantive-unreasonableness challenge, although the
36-month sentence is above the maximum policy statement sentence of 11
months, it is below the statutory maximum of 60. “We have routinely affirmed
revocation sentences exceeding the advisory range, even where the sentence
equals the statutory maximum.” Warren, 720 F.3d at 332 (citation omitted).
This matter does not warrant a different result. See id. at 333. Shirey does
not show that the court: failed to account for a factor that should have received
significant weight; gave significant weight to any irrelevant or improper
factors; or committed a “clear error of judgment in balancing the sentencing
factors”. United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      AFFIRMED.




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