     Case: 09-51176 Document: 00511307227 Page: 1 Date Filed: 11/30/2010




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

                                                 FILED
                                                                         November 30, 2010
                                     No. 09-51176
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TONY LAM,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:09-CR-810-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Tony Lam appeals the 15-month sentence he received on revocation of his
supervised release, following his guilty plea conviction for possession with intent
to distribute 500 grams or more of cocaine. Lam argues that the sentence
imposed on revocation was unreasonable because it was imposed to run
consecutively to the 80-month sentence imposed for the underlying conviction
and that the court abused its discretion in denying his request to impose a
concurrent sentence. Lam contends that the district court failed to state its

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-51176

reasons for imposing a consecutive sentence and that the failure to state such
reasons evinced a failure to consider the 18 U.S.C. § 3553(a) factors.
      We have yet to address whether sentences imposed upon revocation of
supervised release are to be reviewed under the “unreasonableness” standard of
United States v. Booker, 540 U.S. 220 (2005). Prior to Booker, we applied a
“plainly unreasonable” standard. See United States v. Hinson, 429 F.3d 114,
119–20 (5th Cir. 2005). We need not decide the correct standard today because
Lam’s sentence is appropriate under either standard. See id. at 120. To the
extent that Lam challenges the district court’s failure to provides reasons for
imposing a consecutive sentence, plain error review is applicable because Lam
did not object in the district court on this ground.        See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009).
      “The decision to impose a consecutive . . . sentence upon revocation of
supervised release is committed to the sound discretion of the district court.”
United States v. Cotroneo, 89 F.3d 510, 512 (5th Cir. 1996). The district court’s
decision to run the revocation sentence consecutive to the sentence on the
underlying charge was authorized by statute and is preferred under the
guidelines policy statements.    See 18 U.S.C. § 3584; U.S.S.G. § 7B1.3(f) &
comment. (n.4.). Additionally, the sentencing transcript reflects that the district
court considered the § 3553(a) factors when imposing Lam’s revocation sentence.
Although the district court did not expressly identify its reasons for imposing a
consecutive sentence, any error in failing to explain that choice does not warrant
relief under plain error review because Lam cannot show that any error had an
effect on the outcome of the sentencing proceedings. See Mondragon-Santiago,
564 F.3d at 361; see also United States v. Whitelaw, 580 F.3d 256, 261-65 (5th
Cir. 2009).




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                               No. 09-51176

      Accordingly,   Lam’s   revocation   sentence   satisfies   the   “plainly
unreasonable” and Booker “unreasonableness” standards. See Hinson, 429 F.3d
at 120.
      AFFIRMED.




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