     Case: 10-11152       Document: 00512246222         Page: 1     Date Filed: 05/17/2013




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

                                                                            FILED
                                                                           May 17, 2013
                                     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
                                   (01-CR-136)



 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
       On December 21, 2011, we affirmed the district court’s revocation of
Davis’s terms of supervised release for his convictions of possession with intent
to distribute cocaine base and possession of a firearm by an unlawful user of
controlled substances. We held that “the split amongst the circuit courts of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

appeals on the issue” of whether it is improper for a district court to rely on 18
U.S.C. § 3553(a)(2)(A) for the modification or revocation of a supervised release
term, “rendered any consideration of the § 3553(a)(2)(A) factors neither clear nor
obvious legal error.” United States v. Davis, 454 F. App’x 383, 385 (5th Cir.) (per
curiam) (unpublished)).     The Supreme Court vacated and remanded our
judgment for further consideration in light of Henderson v. United States, 133
S. Ct. 1121 (2013). In Henderson, the Supreme Court held that an error is plain
within the meaning of Rule 52(b) of the Federal Rules of Criminal Procedure
when the error is plain at the time of appellate review. Id. at 1124–25.
      On remand, Davis contends that this court should vacate the district
court’s judgment and remand for re-sentencing because our decision in United
States v. Miller, 634 F.3d 841 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011),
makes it “plain” that the district court improperly considered “punishment”
under § 3553(a)(2)(A), when it imposed sentence on Davis after revoking his
terms of supervised release. The government responds that Davis’s supervised
release terms were revoked, in part, under 18 U.S.C. § 3583(g), which does not
limit the sentencing factors a court may consider in fashioning a sentence. For
the following reasons, we agree with the government that the district court could
consider § 3553(a)(2)(A), and thus affirm the district court’s judgment.
      In 2002, Davis pleaded guilty to possession with intent to distribute
cocaine base in violation of 21 U.S.C. § 841 (Count 1), and possession of a firearm
by an unlawful user of controlled substances in violation of 18 U.S.C. § 922(g)(3)
(Count 3). The district court imposed an aggregate sentence of 110 months’
imprisonment, which was later reduced to 97 months pursuant to 18 U.S.C.
§ 3582(c)(2). The district court also imposed a four-year term of supervised
release as to Count 1, and a concurrent three-year term of supervised release as
to Count 3. Davis began serving his terms of supervised release on December
22, 2008.
      The district court subsequently revoked supervised release after finding
that Davis had knowingly possessed, with intent to deliver, cocaine, and failed

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                                       No. 10-11152

to report to the probation office in August 2010. Davis was sentenced to 36
months’ imprisonment on Count 1, and 24 months’ imprisonment on Count 3, to
be served consecutively. In imposing sentence, the district court stated that it
was sentencing 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)].”
       Because Davis only generally objected to the reasonableness of his
sentence, we review his sentence for plain error only.1 See United States v.
Dunigan, 555 F.3d 501, 506 (5th Cir. 2009). To show plain error, an appellant
must show (1) a forfeited error (2) that is clear or obvious and (3) that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If an
appellant makes such a showing, we have discretion to correct the error, but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. We need not decide whether to exercise our discretion because
we find that Davis has failed to show plain error.
       “To be ‘plain,’ legal error must be ‘clear or obvious, rather than subject to
reasonable dispute.’” United States v. Castillo-Estevez, 597 F.3d 238, 241 (5th
Cir. 2010) (quoting Puckett, 556 U.S. at 135). Although our decision in Miller
had not issued at the time the district court sentenced Davis, Henderson makes
clear that we must consult Miller as the controlling statement of law at the time
of appellate review. See Henderson, 133 S. Ct. at 1124–25. In Miller, we held
that a district court could not consider § 3553(a)(2)(A) in revoking a supervised
release term under 18 U.S.C. § 3583(e), “because Congress deliberately omitted
that factor from the permissible factors enumerated in the statute.” 634 F.3d at
844. Section 3583(e) provides that a court “may, after considering the factors set
forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
(a)(7) . . . revoke a term of supervised release.” 18 U.S.C. § 3583(e). Accordingly,

       1
         Davis continues to argue that, by challenging the reasonableness of his sentence, his
appeal should be reviewed under a “plainly unreasonable” standard. However, Davis did not
object on the ground that the district court had considered a prohibited factor in imposing
sentence. Plain-error review thus is appropriate. See United States v. Whitelaw, 580 F.3d 256,
259–60 (5th Cir. 2009).

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a district court imposing sentence after revoking a supervised release term
under § 3583(e) may not consider the sentence’s need “to reflect the seriousness
of the offense, to promote respect for the law, and to provide just punishment for
the offense.” 18 U.S.C. § 3553(a)(2)(A).
      Nevertheless, our holding in Miller does not extend beyond § 3583(e). 634
F.3d at 844. In particular, it does not reach sentences imposed under § 3583(g).
Pursuant to that statute, “[i]f the defendant . . . possesses a controlled substance
in violation of” his conditions of supervised release, “the court shall revoke the
term of supervised release and require the defendant to serve a term of
imprisonment.” 18 U.S.C. § 3583(g). We have held that “when revocation of
supervised release is mandatory under . . . § 3583(g), the statute does not require
consideration of the § 3553(a) factors.” United States v. Giddings, 37 F.3d 1091,
1095 (5th Cir. 1994).
      Here, the district court granted the government’s motion to revoke
supervised release under § 3583(e) and (g). First, the court revoked supervised
release under § 3583(e) because Davis failed to report to probation. Second,
because under the terms of his supervised release, Davis was prohibited from
unlawfully possessing a controlled substance, his supervised release terms were
mandatorily revoked under § 3583(g) upon the district court’s finding that he
had possessed cocaine.       Although the district court could not consider
§ 3553(a)(2)(A) in revoking supervised release and imposing sentence under
§ 3583(e) for Davis’s failure to report, the court was not so constrained in
revoking supervised release and imposing sentence under § 3583(g) for
possession. See id. at 1095–97; see also United States v. Olvera, 491 F. App’x
488, 488–89 (5th Cir, 2012) (per curiam) (unpublished) (consideration of
§ 3553(a)(2)(A) was not clear or obvious error where revocation of supervised
release was mandated by § 3583(g)); United States v. Ibanez, 454 F. App’x 328,
329–30 (5th Cir. 2011) (per curiam) (unpublished).
      Because the district court statutorily was required to revoke Davis’s
supervised release terms upon finding that he had been in possession of a

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controlled substance, Miller did not prohibit the court from considering
§ 3553(a)(2)(A), including “just punishment.” See United States v. Wilson, 460
F. App’x 351, 352 (5th Cir. 2012) (per curiam) (unpublished) (“Because § 3583(g)
does not expressly invoke the § 3553(a) factors or the limits imposed by the first
clause of § 3583(e), we find no clear or obvious error under Miller.”). That
Davis’s supervised release terms were revoked not only for possession, but also
because he failed to report to probation, does not alter our conclusion. See
United States v. Ellsworth, 490 F. App’x 663, 663–64 (5th Cir. 2012) (per curiam)
(unpublished) (district court did not err in considering § 3553(a)(2)(A) factor
where supervised release was revoked under § 3583(e) and (g)).
      The judgment of the district court is AFFIRMED. The government’s
motion for summary disposition is DENIED as moot.




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