     Case: 10-11152     Document: 00511702889         Page: 1     Date Filed: 12/21/2011




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

                                                                            FILED
                                                                        December 21, 2011
                                     No. 10-11152
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANTOINE T. DAVIS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:01-CR-136-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Antoine T. Davis appeals the revocation of his supervised release terms for
his convictions of possession with intent to distribute cocaine base (Count 1) and
possession of a firearm by an unlawful user of controlled substances (Count 3).
Upon the revocation of his supervised release terms, he was sentenced to 36
months of imprisonment as to Count 1 and 24 months of imprisonment as to
Count 3, to run consecutively. The district court stated that it was 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-11152

Davis “for the purposes of punishment and deterrence, as well as meeting the
other factors as set forth in [18 U.S.C. § 3553(a)].”
      Davis argues that the district court reversibly erred when it sentenced him
for the purpose of punishment because this purpose is included as a sentencing
factor under § 3553(a)(2)(A) and because this court held in United States v.
Miller, 634 F.3d 841 (5th Cir. 2011), cert. denied, ___ S. Ct. ___, No. 10-10784,
2011 WL 2148772 (Oct. 31, 2011), during the pendency of his appeal that the
§ 3553(a)(2)(A) sentencing factors may not be considered in the revocation of
supervised release. The Government has moved for summary affirmance or,
alternatively, for an extension of time to file a brief.
      Because Davis objected only generally to the reasonableness of his
revocation sentence, this issue is reviewed for plain error only. See United
States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009). To show plain error, an
appellant must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If an
appellant makes such a showing, this court has the discretion to correct the
error, but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.
      In Miller, which was decided after Davis was sentenced and while the
instant appeal was pending, we held that “it is improper for a district court to
rely on § 3553(a)(2)(A) for the modification or revocation of a supervised release
term.” 634 F.3d at 844. To the extent that the district court relied on a
§ 3553(a)(2)(A) factor, such reliance was impermissible under Miller. However,
the split amongst the circuit courts of appeals on the issue and the lack of a
published opinion from this court at the time of the district court proceedings
rendered any consideration of the § 3553(a)(2)(A) factors neither clear nor
obvious legal error. See United States v. Salinas, 480 F.3d 750, 759 (5th Cir.
2007); United States v. Gloria, No. 10–10423, 2011 WL 3966101, at *2 (5th Cir.
Sept. 7, 2011). Accordingly, Davis has not demonstrated plain error. See
Puckett, 129 S. Ct. at 1429.

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                                     No. 10-11152

      Although we conclude that the judgment should be affirmed without
further briefing, summary disposition is not appropriate. See United States v.
Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006). Thus, we
deny the Government’s motion for summary affirmance or, alternatively, for an
extension of time to file a brief.
      JUDGMENT AFFIRMED; MOTION DENIED.




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