     Case: 11-30064     Document: 00511609859         Page: 1     Date Filed: 09/22/2011




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

                                                                            FILED
                                                                        September 22, 2011
                                     No. 11-30064
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ADAM LEE TOLER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:07-CR-273-10


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Adam Lee Toler appeals the sentence imposed
following the revocation of his supervised release. He was sentenced to an 18-
month term of imprisonment, which, as Toler effectively concedes, was within
the applicable guideline range. Although he did not object to his sentence at the
revocation hearing, Toler raised objections in a motion for reconsideration, which
the district court denied.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30064    Document: 00511609859      Page: 2    Date Filed: 09/22/2011

                                  No. 11-30064

      The government contends that plain error review applies to all issues
raised by Toler on appeal because he raised no objections at the revocation
hearing.   Toler counters that the proper standard of review is abuse of
discretion, contending that his motion for reconsideration was sufficient to
preserve his issues for appellate review. For reasons that are apparent in the
following discussion, we need not determine whether issues raised for the first
time in Toler’s motion for reconsideration were preserved for appellate review.
      Toler asserts that the district court erred in failing to consider the
sentencing factors of 18 U.S.C. § 3553(a). “[A]bsent a contrary indication in the
record, a district court will be presumed to have considered and weighed the
§ 3553(a) factors.” United States v. Izaguirre-Losoya, 219 F.3d 437, 440 (5th Cir.
2000). Toler’s motion for reconsideration brought to the attention of the district
court the circumstances faced by his family, which formed the basis of his
contention that a lesser sentence was warranted under the factors of § 3553(a).
By denying Toler’s motion for reconsideration of his sentence, the district court
implicitly rejected his claim that application of the sentencing factors warranted
a lesser sentence. See United States v. Gonzales, 250 F.3d 923, 930 (5th Cir.
2001). Thus, even if the issue was preserved for appellate review, Toler has not
shown reversible error.
      Toler also claims that the district court erred by failing to explain the
reasons for its sentence. Because this issue was not raised either at the
revocation hearing or in the motion for reconsideration, we review it for plain
error. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To
succeed under the plain error standard, Toler must show a forfeited error that
is clear or obvious and that affects his substantial rights. Then, even if we do so,
we must exercise discretion in deciding whether to correct the error, doing so
only if it “seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)
(internal quotation marks and citation omitted).

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                                   No. 11-30064

      Although he provides details about the hardships faced by his family in his
absence, Toler has not shown that an explanation for the district court’s
sentencing decision would have mandated a change of his within-guidelines
sentence. Accordingly, he has failed to satisfy the plain error standard. See
Puckett, 129 S. Ct. at 1429; United States v. Mondragon-Santiago, 564 F.3d 357,
364-65 (5th Cir. 2009).
      Toler insists that the district court abused its discretion in causing his
revocation sentence to run consecutively to his 60-month sentence for the
offenses of interstate travel in aid of racketeering and attempted arson. He also
contends that imposition of a consecutive sentence is substantively
unreasonable, given his circumstances. These issues lack merit. “The district
court has the discretion to order that a sentence imposed on the revocation of
supervised release run concurrently with or consecutively to other sentences.”
Whitelaw, 580 F.3d at 260. Toler’s within-guidelines revocation sentence, which
did not exceed the statutory maximum, was not plainly unreasonable. See
United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011), petition for cert. filed,
(May 27, 2011) (No. 10-10784); Whitelaw, 580 F.3d at 265. Even assuming
arguendo that these issues were preserved for appellate review, Toler fails to
show reversible error.
      AFFIRMED.




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