     Case: 18-31229    Document: 00515182330       Page: 1   Date Filed: 10/31/2019




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


                                    No. 18-31229                        FILED
                                                                 October 31, 2019
                                                                   Lyle W. Cayce
Consolidated with 18-31230                                              Clerk

UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

EDWARD LEE DAUGHENBAUGH,

             Defendant - Appellant




                Appeals from the United States District Court
                    for the Western District of Louisiana
                         USDC No. 2:06-CR-20060-1
                          USDC No. 2:18-CR-132-1


Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
      After Edward Lee Daughenbaugh violated federal criminal law and the
terms of his supervised release by possessing child pornography, the district
court ordered that the sentence on his new offense and the sentence on his
supervised release revocation run consecutively. On appeal, Daughenbaugh


      *  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should not be published and is not precedent except under the limited circumstances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. 18-31229 c/w 18-31230
argues that his combined 15-year sentence is substantively unreasonable.
Having concluded that Daughenbaugh has not rebutted the presumption that
his sentence was reasonable, we AFFIRM.
                                      I
      In 2006, Daughenbaugh pled guilty to possession of child pornography
and was sentenced to 84 months of imprisonment, to be followed by a lifetime
term of supervised release. His supervision commenced in June 2012. In June
2016, Daughenbaugh’s probation officer filed a petition for a summons and
recommended revocation of supervised release based on an allegation that
Daughenbaugh violated the terms of his supervised release by having
unsupervised contact with minor children. The petition explained that, during
a home visit, the probation officer found children aged two and four living in
Daughenbaugh’s home.
      Daughenbaugh admitted to the violation, and his term of supervised
release was revoked. He was sentenced to one year and one day of
imprisonment, to be followed by a lifetime term of supervised release. The
special conditions of supervised release included provisions that prohibited
Daughenbaugh from purchasing, possessing, or using cellular telephones with
photographic or internet capabilities. Another special condition prohibited
Daughenbaugh from possessing or viewing any image depicting sexually
explicit conduct.
      His second term of supervision commenced in February 2017. In May
2018, the probation officer filed a petition for a warrant, alleging that
Daughenbaugh violated the conditions of supervised release by possessing a
cellular phone with internet capabilities and by possessing and viewing images
depicting sexually explicit conduct. The petition stated that, on May 9, 2018,
the probation officer found Daughenbaugh in possession of a cellular phone at


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                          No. 18-31229 c/w 18-31230
his residence. The phone was found to have “approximately 38 videos depicting
child pornography.”
      Daughenbaugh was indicted in a separate case for the new offense of
possession of child pornography. He pleaded guilty to the new offense, and he
did not contest the allegations that he violated the conditions of his supervised
release.
      The district court bifurcated the revocation proceedings and the
sentencing proceedings on the new conviction. On the new offense, the
presentence report (PSR) calculated a guidelines range of 63 to 78 months;
however, the statute mandated a minimum sentence of 10 years because
Daughenbaugh had previously been convicted of the same offense. See 18
U.S.C. § 2252A(b)(2). Therefore, the guidelines sentence became 120 months.
See U.S.S.G. § 5G1.1(b). On the revocation, the advisory range was 4 to 10
months of imprisonment. However, Daughenbaugh was also subject to a
minimum term of five years of imprisonment on the revocation because of the
nature of his underlying offense; thus, the guidelines sentence became 60
months. See 18 U.S.C. §§ 2252A(a)(5)(B), 3583(k); U.S.S.G. § 7B1.4(b)(2).
      At the sentencing hearing for the new conviction, Daughenbaugh
acknowledged that he was subject to statutorily mandated terms of
imprisonment. He argued that the court should exercise its discretion to order
that the sentences imposed run concurrently. Daughenbaugh asserted that the
new offense and the revocation involved the same conduct. He repeated this
argument during sentencing on the revocation.
      On the new offense, the district court imposed a sentence of 120 months
of imprisonment, to be followed by a lifetime term of supervised release.
Daughenbaugh did not object to the 120-month sentence.




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                             No. 18-31229 c/w 18-31230
      On the revocation, the court imposed a sentence of 60 months and
ordered the sentence to run consecutively to the sentence imposed on the new
conviction. In imposing the sentence, the court noted that it had considered the
relevant factors of 18 U.S.C. § 3553(a), particularly the nature and
circumstances of the offense and the nature and characteristics of the
defendant. The court observed that, although the policy statement indicated a
term of imprisonment imposed in a revocation of supervised release for this
type of offense “shall” run consecutively, the Guidelines were advisory and that
the court was not bound by the language. Nevertheless, the court indicated
that it believed the policy statements in the Guidelines were correct “in this
instance,” noting that Daughenbaugh was a recidivist for the same offense.
Daughenbaugh objected to the sentence imposed on revocation of supervised
release. He filed timely notices of appeal in both cases. The appeals were
consolidated.
                                            II
      Daughenbaugh         argues    that    his   combined     15-year     sentence    is
substantively unreasonable and that the sentences should have been ordered
to run concurrently. 1 He asserts that a concurrent sentence would have
achieved the sentencing goals of § 3553(a) and that the consecutive five-year
term of imprisonment imposed on his revocation of supervised release is
greater than necessary to satisfy the § 3553(a) factors.




       1 Though Daughenbaugh initially indicates in his brief that he is appealing both
sentences, his arguments are directed only at the sentence imposed on revocation of his
supervised release. Daughenbaugh does not brief any challenge to the sentence imposed in
connection with his new conviction and seeks only to have the revocation sentence vacated.
Therefore, he has abandoned the appeal of the 120-month sentence, and we affirm the
judgment in that case. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993); see also
United States v. Pineda-Pineda, 743 F. App’x 547, 548 (5th Cir. 2018) (per curiam).

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                          No. 18-31229 c/w 18-31230
      Revocation sentences are reviewed under 18 U.S.C. § 3742(a)’s “plainly
unreasonable” standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011). A within-guidelines, consecutive sentence is presumed to be reasonable.
United States v. Candia, 454 F.3d 468, 472–73 (5th Cir. 2006). A revocation
sentence is substantively unreasonable where the district court did not take
into account a factor that should have received significant weight, gave
significant weight to an irrelevant or improper factor, or made a clear error in
judgment when balancing the sentencing factors. United States v. Warren,
720 F.3d 321, 332 (5th Cir. 2013).
      Daughenbaugh’s challenge to the sentence is limited to its consecutive
nature. He contends that the 60-month revocation sentence punishes the same
conduct underlying the new conviction and that the sentences should therefore
run concurrently. He further notes that his guidelines range would have been
substantially lower without the statutorily mandated sentences and asserts
that he would pose no danger to the community if he were released in 10 years
at the age of 61.
      His arguments are unavailing. Sentences imposed on revocation of
supervised release and for new offenses are separate sentences imposed in
separate criminal proceedings. See Johnson v. United States, 529 U.S. 694, 700
(2000) (explaining that a sentence imposed following the revocation of
supervised release is part of the penalty for the original conviction). A sentence
imposed on revocation of supervised release punishes a breach of trust for
violating the conditions of supervision; thus, it is distinct from the sentence
imposed on the new offense. See United States v. Zamora-Vallejo, 470 F.3d 592,
596 & n.6 (5th Cir. 2006); see also United States v. Ramirez, 264 F. App’x 454,
458 (5th Cir. 2008) (per curiam).




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                            No. 18-31229 c/w 18-31230
      The district court had the discretion to order that Daughenbaugh’s
sentences be served consecutively. See United States v. Whitelaw, 580 F.3d 256,
260 (5th Cir. 2009); see also 18 U.S.C. § 3584(a); U.S.S.G. § 7B1.3(f) cmt. n.4.
Additionally, the Guidelines provide that a revocation sentence should run
consecutively to another sentence, even if both arose out of the same conduct,
because a revocation sentence punishes a breach of trust rather than the
criminal conduct. U.S.S.G. 7A, introductory cmt. ¶ 3(b); § 7B1.3(f) & cmt. n.4
(specifying that a term of imprisonment imposed upon revocation “shall run
consecutively” to any other terms the defendant is serving).
      Daughenbaugh’s consecutive 60-month sentence was within the range
recommended by the policy statements. See 18 U.S.C. §§ 2252A(a)(5)(B),
3583(k); U.S.S.G. § 7B1.4(b)(2). Daughenbaugh’s conclusory assertion that the
resulting combined 15-year sentence is greater than necessary to satisfy the
sentencing goals of § 3553(a) is insufficient to rebut the presumption of
reasonableness attached to his within-guidelines revocation sentence. See
Warren, 720 F.3d at 332; Candia, 454 F.3d at 472–73. 2
      AFFIRMED.




      2 The Supreme Court recently held that a revocation of supervised release and
imposition of the five-year mandatory minimum sentence pursuant to § 3583(k),
based on judge-made findings by a preponderance of the evidence, violated due
process and the right to a trial by jury. United States v. Haymond, 139 S. Ct. 2369,
2373–85 (2019) (plurality opinion with one justice concurring in the judgment). But
Daughenbaugh does not challenge his revocation sentence on this ground, possibly
because it is doubtful that Haymond would be of any help to him. After all, unlike the
defendant in that case, Daughenbaugh was charged separately for the underlying
criminal conduct and was therefore afforded the opportunity to have a jury determine
beyond a reasonable doubt whether he committed the latest offense. He instead chose
to plead guilty.

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