     Case: 11-30414   Document: 00511894549   Page: 1   Date Filed: 06/21/2012




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

                                                                   FILED
                                                                  June 21, 2012

                                 No. 11–30414                     Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee
v.

JOSEPH KIPPERS, also known as Uncle Joe Kippers,

                                           Defendant - Appellant



                  Appeal from the United States District Court
                     for the Eastern District of Louisiana


Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
        Defendant-Appellant Joseph Kippers (“Kippers”) appeals the 48-month
sentence the district court imposed upon revoking his probation. We AFFIRM.
                                       I
        Kippers was one of several people named in a multi-count indictment
centered on a conspiracy to sell illegal drugs. The indictment charged Kippers
in Count 1 with conspiracy to possess 500 grams or more of cocaine
hydrochloride with the intent to distribute it, in violation of 21 U.S.C. §
841(a)(1),(b)(1)(B) and 21 U.S.C. § 846; in Count 2 with conspiracy to possess
methamphetamine with the intent to distribute it, in violation of 21 U.S.C. §
841(a)(1),(b)(1)(C) and 21 U.S.C. § 846; and in Count 5 with using a
   Case: 11-30414        Document: 00511894549         Page: 2     Date Filed: 06/21/2012



                                        No. 11–30414

communication facility (a telephone) in committing conspiracy to possess cocaine
hydrochloride with the intent to distribute it, in violation of 21 U.S.C. § 843(b).
Kippers reached a plea agreement with the Government in 2008. Kippers pled
guilty to Count 5, and in exchange, the Government dismissed him from Counts
1 and 2.
      At sentencing, his guidelines range provided for ten to sixteen months in
prison, one year of supervised release, and a $3,000 to $30,000 fine. Information
in Kippers’ presentence report (“PSR”), provided by Kippers and his sister,
reflected a range of mental and physical conditions, including a mental health
issue that was treated through psychotropic medications associated with thought
disorders such as schizophrenia. The district court, expressly considering
Kippers’ mental and physical limitations, sentenced him below the guidelines
range to three years of probation and imposed no fine, stating:
               I don’t see anything to be served considering his serious
               physical disabilities, his mental disabilities, and so
               forth, that there would be any good purpose served by
               putting him in prison, none of which is to lessen the
               seriousness of what you did, Mr. Kippers, and I hope we
               don’t see you around here again.

      Two years later, the probation office successfully petitioned the district
court to issue a warrant for Kippers based on a violent incident that resulted in
his arrest.      At his revocation hearing, Kippers admitted to violating his
probation by pleading guilty to simple assault.1 Kippers asked the court not to
revoke his probation but instead to impose additional, modified conditions on his
existing probation. In support, he stressed that he had already spent about five
months in parish custody due to the incident underlying his state court
conviction (despite receiving only a ten-day sentence) and that he had served the
first two years of his probation without any problems.                    The Government

      1
          The State elected not to prosecute a resisting arrest charge.

                                               2
   Case: 11-30414   Document: 00511894549     Page: 3   Date Filed: 06/21/2012



                                 No. 11–30414

represented that Kippers’ daughter, the victim of Kippers’ assault, did not
believe that imprisonment would do society or Kippers any good and that she
had requested that the district court not revoke his probation but add an anger
management condition.
      The district court asked Kippers’ daughter to explain the events
underlying Kippers’ probation violation. She testified that her father came over
early in the morning while she and three of her five children were at home and
entered the kitchen. She told the district court:

                   He had a big gas can in one hand. He walked over
            to the counter in the kitchen where my knife block was
            sitting and grabbed a knife and turned around and said
            that I would give him his money or he would blow our
            house up with me and the kids in it.

Kippers’ daughter called the police and was able to get her children out of the
house safely. Kippers ignored the police’s demands to exit the house and came
out only as they were about to enter with guns. Even after leaving the house,
he continued to hold the gas can and ignored police’s demands to surrender. The
police tackled him to the ground.
      The district court asked if anything had provoked Kippers. Kippers’
daughter explained that she was allocated money from the BP oil spill
settlement and told her father she would give him some money after receiving
her check. The day before Kippers threatened to burn down her house, his
daughter had received her check and deposited it. Kippers demanded the entire
sum, but she refused to give him anything because the check had not yet cleared.
Kippers’ daughter testified:
                  He didn’t even give me a chance to come to an
            agreement with him or offer him any of it before he
            basically demanded that I give him all of it, and then I



                                       3
   Case: 11-30414   Document: 00511894549      Page: 4   Date Filed: 06/21/2012



                                 No. 11–30414

            didn’t even have it to give to him that day. And he
            stormed off angry, and then next morning he arrived.

Before leaving the stand, Kippers’ daughter added, “I just want to say that I love
my dad and that I think he has problems mentally that he needs to address, and
hopefully he’ll get the help he needs so he can be a better person.”
      The district court told Kippers that he had clearly violated the conditions
of his probation and that his conduct was “very disturbing” and unjustifiable
even in light of his “obviously . . . serious mental health issues.” The district
court added, “[B]ut for the fact that your daughter has said that she does not
want you put in jail, I would be detaining you and putting you in jail today.” The
district court informed Kippers that it would instead give him a “break” and
would order a two-year extension to his previous three-year sentence of
probation. The district court advised it would also order him to continue anger
management and mental health counseling and explained that Kippers would
have no contact with his daughter without the court’s approval.
      The district court then attempted to admonish Kippers:
            THE COURT: Do you understand how serious this is?
            THE DEFENDANT: I understand how serious she
            made it look to you.
            THE COURT: How serious it is. If you come back here
            again with anything in any way similar to this where
            you are threatening anyone or causing other problems
            in violation of the terms of your probation, or if you
            don’t follow through fully and completely with the
            anger management program and mental health
            program, then you are going to be back here, and I will
            send you to jail. Do you understand?
            THE DEFENDANT: Yes, sir.
            THE COURT: I won’t hesitate.
            THE DEFENDANT: Uh-huh (affirmative response).
            THE COURT: It seems like you’ve got a chip on your
            shoulder right now, I have to tell you. That’s my
            impression of you, okay?


                                        4
  Case: 11-30414    Document: 00511894549      Page: 5    Date Filed: 06/21/2012



                                 No. 11–30414

            THE DEFENDANT: Yes, sir, I do. Because she’s a liar.
            THE COURT: She’s a liar. Your daughter is a liar.
            THE DEFENDANT: Yes, sir. I went there to get a—
            THE COURT: I tell you what, Mr. Kippers, I’m not
            going to extend your probation; instead, I’m going to
            revoke your probation, and I’m going to send you to jail
            right now, today.
            What’s the maximum sentence I can give this
            gentleman?

The Government informed the district court that the statutory maximum term
of imprisonment was four years.
      The district court continued,
            You’ve been given break after break, Mr. Kippers. I
            should have sent you to jail the first time. You got a
            break by being allowed to plead to using a phone
            instead of what you were really guilty of, which was a
            drug offense. I gave you a big break by giving you a
            suspended sentence.
                  Frankly, I remember you very well. You came in
            and you were very pitiful looking, and I felt sorry for
            you, but I don’t feel sorry for you any more. Not one bit.

      Kippers’ counsel reminded the district court that the Guidelines provided
for a maximum sentence of nine months of imprisonment. The district court
responded that the guidelines range of three to nine months in prison was
“advisory” and “not nearly enough time here for the reasons I’ve said.” The
district court then revoked Kippers’ probation and sentenced him to four years
of imprisonment with no term of supervised release. The district court noted
that during this period of incarceration, Kippers would have the opportunity to
enroll in mental health and anger management programs. The district court
ordered Kippers not to have contact with his daughter.




                                        5
   Case: 11-30414    Document: 00511894549      Page: 6    Date Filed: 06/21/2012



                                  No. 11–30414

      Kippers’ counsel objected to the district court’s “unreasonable sentence”
and “unreasonable application of the sentencing guidelines.” The district court
overruled these objections. Kippers timely appealed.
                                        II
      Kippers presents two issues for our review: (1) whether the review of a
sentence imposed on revocation of probation requires closer scrutiny than review
of a sentence imposed on revocation of supervised release; and (2) whether the
district court’s sentence was plainly unreasonable.
      Where, as here, no sentencing guideline applies, this court has previously
held that it will not uphold a sentence that is plainly unreasonable. United
States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996) (citing United States v.
Mathena, 23 F.3d 87, 89 (5th Cir. 1994) (involving revocation of supervised
release)). This holding reflects Congress’ limitation on appeals expressed in 18
U.S.C. § 3742(a)(4), which allows a defendant to appeal a sentence “imposed for
an offense for which there is no sentencing guideline [only when it] is plainly
unreasonable.” Although United States v. Booker, 543 U.S. 220 (2005), called
into question § 3742’s application, this court confirmed in United States v. Miller,
634 F.3d 841, 842–43 (5th Cir.), cert. denied 132 S. Ct. 496 (2011), that Booker
did not abrogate § 3742(a)(4). Thus, under Miller, it seems that § 3742(a)(4)’s
plainly unreasonable standard continues to govern our review of sentences
imposed for which there is no sentencing guideline. And although Miller
concerned a sentence imposed upon revocation of supervised release, since
Miller, this court has applied the plainly unreasonable standard in at least one
unpublished case reviewing sentences imposed on revocation of probation.
United States v. Thomas, 427 F. App’x 370, 371 (5th Cir. 2011); see United States
v. Mason, 440 F. App’x 370, 372 (5th Cir. 2011) (reviewing for plain error
because the defendant failed to object that the length of his sentence was
unreasonable).

                                         6
   Case: 11-30414      Document: 00511894549        Page: 7     Date Filed: 06/21/2012



                                     No. 11–30414

       Nevertheless, Kippers asserts that this court should more closely
scrutinize sentences imposed on revocation of probation than other sentences
lacking a sentencing guideline—specifically, sentences imposed on revocation of
supervised release. In support, he contends that a defendant whose probation
has been revoked is especially vulnerable because the statutory maximum
penalty for a probation revocation is the same as the statutory maximum for the
original offense. See 18 U.S.C. § 3565(a)(2) (stating that, where probation is
revoked, a defendant may be resentenced “under subchapter A,” which includes
general provisions that deal with sentencing).             In contrast, the statutory
maximum penalty for a supervised release revocation is generally lower because
18 U.S.C. § 3583(e)(3) significantly limits the sentences that a district court may
impose.2 Kippers’ assertion that this court should more closely scrutinize
sentences imposed on revocation of probation lacks support and contradicts this
court’s holding in Miller and earlier case law. Section 3742(a)(4) clearly applies
to this case, and under Miller, the plainly unreasonable standard, articulated by
§ 3742(a)(4) and our pre-Booker precedents, persists beyond Booker. See 634
F.3d at 842–43.
       To evaluate whether a sentence is plainly unreasonable, this court “must
first ensure that the district court committed no significant procedural error,”
such as failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence,
including failing to explain a deviation from the Guidelines range. Gall v.
United States, 552 U.S. 38, 51 (2007). If the district court’s sentencing decision

      2
        Kippers also urges that Congress could not have intended courts to review sentences
for probation revocations under the same standard as sentences for supervised release
revocations because it enacted 18 U.S.C. § 3565 before the Guidelines’ promulgation.
Congress, however, amended the language in 18 U.S.C. § 3565(a)(2) relevant to the
resentencing of defendants on revocation of probation after the Guidelines began providing
that sentences for revocation of probation and supervised release were “functionally
equivalent.” See U.S. SENTENCING GUIDELINES MANUAL ch. 7, pt. B, introductory cmt. (2010).

                                            7
   Case: 11-30414    Document: 00511894549       Page: 8   Date Filed: 06/21/2012



                                   No. 11–30414

lacks procedural error, this court next considers the substantive reasonableness
of the sentence imposed.3 Id. On appeal, Kippers (1) asserts that the district
court committed procedural error and (2) attacks the sentence imposed on
revocation for its substantive reasonableness.
                                         A
      Kippers contends that the district court committed a procedural error
because it based his sentence on inadequate and improper reasons and failed to
consider his mental illness. Because Kippers objected only generally to the
reasonableness of his sentence, we review Kippers’ claimed procedural error for
plain error. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009)
(explaining that plain error review applied on appeal where defendant failed to
raise any of the specific claims of procedural error before the district court).
      To show plain error, Kippers must show an error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 129 S. Ct. 1423, 1429 (2009); United States v. Davis, 602 F.3d 643, 647 (5th
Cir. 2010) (explaining that in the sentencing context, an error affects substantial
rights “where the appellant can show a reasonable probability that, but for the
district court’s error, the appellant would have received a lower sentence”). This
court will only exercise its discretion to correct an error, however, if Kippers also
demonstrates that the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See Puckett, 129 S. Ct. at 1429.
      Where a defendant violates a condition of probation at any time before his
term of probation expires or terminates, the court may, after conducting a
hearing and considering § 3553(a)’s factors (to the extent that they apply), either
continue the defendant’s probation or revoke probation and resentence the
defendant. 18 U.S.C. § 3565(a). Section 3553(a)’s factors include: (1) the nature

      3
         Only where we determine that a sentence is substantively unreasonable do we
consider whether the error was obvious under existing law. Miller, 634 F.3d at 843.

                                         8
   Case: 11-30414       Document: 00511894549          Page: 9     Date Filed: 06/21/2012



                                       No. 11–30414

and circumstances of the offense and the defendant’s history and characteristics;
(2) the need for the sentence to reflect the seriousness of the offense, promote
respect for the law, provide just punishment for the offense, afford adequate
deterrence from crime, protect the public from further crimes of the defendant,
and provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;4 (3)
the kinds of sentences available; (4) the kinds of sentence and sentencing range
established by the Guidelines or the policy statements issued by the Sentencing
Commission; (5) any relevant policy statement issued by the Sentencing
Commission in effect; (6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct; and (7) the need to provide restitution to any victims of the offense. 18
U.S.C. § 3553(a).
       Under plain error review, a district court commits clear and obvious error
when it fails to state reasons for a sentence outside the guidelines range.
Whitelaw, 580 F.3d at 261–62. But, this court has explained, a district court
need not engage in “a checklist recitation of the section 3553(a) factors.” United
States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (reviewing a sentence imposed
upon conviction). Rather, “[i]mplicit consideration of the § 3553 factors is
[generally] sufficient.” Teran, 98 F.3d at 836; accord United States v. Gonzalez,
250 F.3d 923, 930 (5th Cir. 2001). Ultimately, a district court must justify a
sentence it imposes upon revocation outside the policy statement’s recommended
range so as “to allow for meaningful appellate review and to promote the
perception of fair sentencing.” See Gall, 552 U.S. at 50. Specifically, a district


       4
         For the modification or revocation of a supervised release term, the district court may
not rely on § 3553(a)(2)(A), which allows the district court to impose a sentence that reflects
the “seriousness of the offense, to promote respect for the law, and to provide just punishment
for the offense.” See Miller, 634 F.3d at 844. However, no such restriction exists on the
consideration of the § 3553(a) factors in regard to the revocation of probation.

                                               9
  Case: 11-30414       Document: 00511894549          Page: 10      Date Filed: 06/21/2012



                                       No. 11–30414

court must explain why its sentence “is appropriate in a particular case with
sufficient justifications” when imposing “an unusually lenient or an unusually
harsh sentence.” See id. at 46.
       On appeal, Kippers asserts that the district court committed clear and
obvious error because it failed to rely on § 3553(a)’s factors.5 Kippers also
asserts that the district court failed to adequately justify its leap from an
advisory range of three to nine months of imprisonment set forth in the policy
statements to the 48-month statutory maximum sentence that it ultimately
imposed. Kippers contends that the district court settled on imposing the
statutory maximum before it knew what the statutory maximum was.
Furthermore, emphasizing the district court’s statement that it no longer felt
sorry for him, Kippers contends that the district court relied on subjective
feelings in sentencing him rather than § 3553(a)’s factors. Kippers asserts that
the record does not support that the district court implicitly considered §
3553(a)’s factors: (1) neither party raised the § 3553(a) factors; (2) the district
court initially decided not to revoke Kippers’ probation after hearing his
daughter’s testimony; and (3) the district court had a sudden and extreme
change of direction following Kippers’ comment that his daughter was a liar.
       Kippers concedes that leniency at the original sentencing generally may
justify a harsher revocation sentence. But Kippers stresses that the district
court was willing to extend his probation before he commented that his daughter
was “a liar” and asserts that his comment and attitude at the revocation hearing

       5
         He further asserts that this affected his substantial rights because the district court
likely would have imposed a lesser sentence had it paused to consider § 3553(a)’s factors,
particularly had it considered that Kippers is a mentally disturbed defendant. Kippers also
contends that this court should exercise its discretion under plain error review to correct the
error because (1) defense counsel failed to object only because Kippers’ ill-advised comment
and the district court’s “unconsidered reaction” caught him unprepared, not because he
intended to sandbag the district court, and (2) a “mentally ill 67-year-old man [would] spend
four years in prison without adequate justification unless the error is corrected.” Because the
district court did not commit a clear and obvious error, we do not reach these arguments.

                                              10
  Case: 11-30414     Document: 00511894549      Page: 11    Date Filed: 06/21/2012



                                   No. 11–30414

produced his 48-month sentence—not any prior leniency. Kippers relies on his
PSR to explain that he had been taking medication associated with thought
disorders, and he attributes his ill-advised comment to a manifestation of his
mental illness. He contends, moreover, that his mental illness cannot properly
justify enhanced punishment and that the district court improperly reacted to
his expressed lack of remorse without considering that his behavior at the
revocation hearing was actually a manifestation of his mental illness.
      The Government responds that the district court implicitly considered §
3553(a)’s factors: it reviewed the probation officer’s dispositional report
regarding Kippers’ probation violation; listened to the parties’ requests for
leniency and discussion of Kippers’ ongoing mental health and anger
management treatment; questioned Kippers’ daughter about the circumstances
of Kippers’ assault; opined that the assault was serious and lacked justification;
observed that Kippers had received many breaks with respect to his past
punishments; and after hearing Kippers’ comment that his daughter was “a
liar,” stated that the policy statement imprisonment range of three to nine
months was “not nearly enough time.” The Government stresses that the
district court considered Kippers’ probation violation to be serious and had
advised Kippers, before Kippers called his daughter “a liar,” that it would have
sentenced him to prison but for his daughter’s request for leniency.
      We agree with the Government. The district court’s statements before and
after Kippers called his daughter “a liar” reflect consideration of the
circumstances and seriousness of Kippers’ assault, his history and
characteristics, the kinds of sentences available, the advisory sentencing range,
and the need to promote respect for the law and provide just punishment for the
offense. See 18 U.S.C. § 3553(a). Specifically, the record reflects that the district
court expressed its concern at the events that led to the revocation hearing,
acknowledged Kippers’ mental illness, understood the guidelines range and

                                         11
  Case: 11-30414     Document: 00511894549       Page: 12    Date Filed: 06/21/2012



                                   No. 11–30414

statutory maximum, and weighed Kippers’ lack of remorse against the
egregiousness of his assault. The district court realized that it had made a
mistake in its repeated leniency with Kippers and revoked his probation. The
record shows that the district court considered 3553(a)’s factors at least
implicitly, did not select a sentence based on clearly erroneous facts, and did not
fail to adequately explain his sentence. See Gall, 552 U.S. at 51. Kippers has
shown no clear and obvious procedural error.
                                          B
      Kippers also disputes the substantive reasonableness of his sentence on
appeal. Because Kippers objected to his sentence as unreasonable, we review
the substantive reasonableness of his sentence for an abuse of discretion.6 See
Miller, 634 F.3d at 843.
      The Supreme Court has explained that when reviewing a sentence for its
substantive reasonableness,
             [This] court will, of course, take into account the
             totality of the circumstances, including the extent of
             any variance from the Guidelines range. If the
             sentence is within the Guidelines range, the appellate
             court may, but is not required to, apply a presumption
             of reasonableness. But if the sentence is outside the
             Guidelines range, the court may not apply a
             presumption of unreasonableness. It may consider the
             extent of the deviation, but must give due deference to
             the district court’s decision that the § 3553(a) factors,
             on a whole, justify the extent of the variance.

Gall, 552 U.S. at 51 (internal citations omitted). The mere fact that we “might
reasonably have concluded that a different sentence was appropriate” is
insufficient to justify reversal of the district court’s sentence because “‘[t]he
sentencing judge is in a superior position to find facts and judge their import

      6
        The Government concedes that Kippers preserved his challenge to the substantive
reasonableness of his sentence.

                                          12
  Case: 11-30414    Document: 00511894549       Page: 13   Date Filed: 06/21/2012



                                  No. 11–30414

under § 3553(a) in the individual case. The judge sees and hears the evidence,
makes credibility determinations, has full knowledge of the facts and gains
insights not conveyed by the record.’” Id. The deference we give to the district
court’s determination on sentencing, moreover, is further supported by the
practical consideration that “‘[t]he sentencing judge has access to, and greater
familiarity with, the individual case and the individual defendant before him
than the Commission or the appeals court.’” See id. at 51–52 (quoting Rita v.
United States, 551 U.S. 338, 357–58 (2007)).
      Kippers asserts that his sentence is substantively unreasonable on the
grounds that he was nearly 67 years old at the time of his revocation hearing,
had completed the first two years of his probation with no violations, and had a
lengthy history of mental illness which likely triggered his ill-advised comment
at the hearing. Reiterating that he had already spent five months in parish jail
due to the assault on his daughter, Kippers contends that a shorter revocation
sentence would have sufficiently impressed upon him the importance of abiding
by the law. Kippers maintains that a 48-month statutory maximum sentence
is unnecessary and counterproductive in his circumstances.
      We disagree. We acknowledge that the range for Kippers’ revocation
sentence under the policy statements was three to nine months of imprisonment.
The district court, however, expressly advised Kippers that this range was “not
nearly enough time” and imposed a sentence that reflected the seriousness of the
crime providing the basis for the revocation. Although Kippers’ 2008 guilty plea
was for use of a communication facility in committing conspiracy to possess with
intent to distribute cocaine hydrochloride, a non-violent crime, the district court
revoked his probation for a particularly violent offense, the gravity of which was
heightened due to the fact that it endangered the lives of his own daughter and
three of her minor children. In light of the district court’s previous leniency, and
the gravity of the crime leading to the district court’s decision to revoke Kippers’

                                        13
  Case: 11-30414    Document: 00511894549     Page: 14   Date Filed: 06/21/2012



                                 No. 11–30414

probation, and mindful of the district court’s intimacy with this case, see Gall,
552 U.S. at 51–52, we cannot say that the district court abused its discretion in
sentencing Kippers to 48 months in prison.
                                       III
      Because Kippers has not shown that the district court committed a
procedural error or that his sentence was substantively unreasonable, he has not
shown that his sentence was plainly unreasonable. We therefore AFFIRM
Kippers’ sentence that the district court imposed upon revoking his probation.




                                       14
