     Case: 18-50426      Document: 00514899552         Page: 1    Date Filed: 04/02/2019




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


                                      No. 18-50426
                                                                                 FILED
                                                                              April 2, 2019
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

              Plaintiff - Appellee

v.

KALEB MCCOWAN,

              Defendant – Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:10-CR-333-4


Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Kaleb McCowan appeals the 36-month sentence
imposed by the district court following revocation of his supervised release.
For the following reasons, we AFFIRM.
                          I. Facts & Procedural History
       In January of 2011, Kaleb McCowan pled guilty to conspiring to possess
with intent to distribute 28 grams or more of a mixture and substance
containing cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(B).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50426
The district court sentenced McCowan to a term of imprisonment of 27 months
to be followed by a five-year term of supervised release.
      The district court revoked McCowan’s supervised release three times
between 2013 and 2017. McCowan’s supervision was revoked the third time
for committing an assault that later resulted in a state conviction and a
probationary sentence of 12 months. Following McCowan’s return to
supervision after the third revocation, the probation officer filed a petition for
warrant or summons for offender under supervision, which charged McCowan
with violating the terms of his supervision by: (1) using marijuana and cocaine
and (2) failing to comply with the conditions of his drug rehabilitation program.
      At the revocation hearing in May 2018, McCowan pled true to the two
violations. His counsel acknowledged his substance abuse problem, argued
that he was capable of completing an outpatient program, and requested a
sentence at the low end of the guidelines range. The district court observed
that there were two occasions when his parole could have been revoked but
was not and that there was little more that could be done for McCowan. The
district court then revoked McCowan’s supervised release and sentenced him
to three years of imprisonment with no supervised release to follow. The
district court explained that it was sentencing McCowan to the statutory
maximum term of imprisonment because it precluded a new term of supervised
release and would free him from court oversight after his prison term was
served. The district court recommended that McCowan receive drug treatment
while in custody. McCowan filed this appeal.
                           II. Standard of Review
      Ordinarily, this court reviews a sentence of imprisonment imposed upon
revocation of a term of supervised release under the “plainly unreasonable”
standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). However,
where, as here, a defendant objects to his revocation sentence for the first time
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                                  No. 18-50426
on appeal, our review is limited to plain error. See United States v. Whitelaw,
580 F.3d 256, 259 (5th Cir. 2009). To show plain error, McCowan must show
that the error was clear or obvious and affects his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
this court has the discretion to correct the error, but only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.
(alteration in original) (internal quotation marks and citation omitted).
                                 III. Discussion
      McCowan’s sole argument on appeal is that the district court
procedurally and substantively erred by failing to account for his anticipated
state revocation sentence when it imposed the statutory maximum federal
revocation sentence. Specifically, he asserts that the district court failed to
consider the state sentence that would follow if his community supervision was
revoked. See U.S.S.G. § 5G1.3(d) & cmt. (n.4(D)). We disagree.
      As a threshold matter, sentences imposed following revocation of
supervised release are subject to the policy statements of Chapter 7 of the
Sentencing Guidelines. See United States v. Johnson, 640 F.3d 195, 208–09
(6th Cir. 2011); United States v. Mathena, 23 F.3d 87, 92–93 (5th Cir. 1994).
Those policy statements favor the imposition of a consecutive sentence when a
separate sentence is imposed following revocation but do not prohibit
imposition of concurrent sentences. See U.S.S.G. Ch. 7, Pt. B, intro. cmt.;
U.S.S.G. § 7B1.3(f), cmt. (n.4). Here, the district court specifically stated that
it had considered the Chapter 7 policy statements prior to imposing McCowan’s
sentence. Accordingly, if the district court knew of the potential state
revocation sentence, it was well within its discretion to decline to order
concurrent sentences. See Whitelaw, 580 F.3d at 260 (the district court has
discretion to impose consecutive or concurrent sentences upon revocation of
supervised release); see also United States v. Esteen, 703 F. App’x 825, 828
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                                 No. 18-50426
(11th Cir. 2017) (holding that § 5G1.3(b) “does not apply to sentences imposed
upon revocation of supervised release”).
      Moreover, at the time McCowan was sentenced, there was no record
evidence indicating that a state sentence was even “anticipated.” The record
before the district court did not contain the state court order granting
community supervision, a motion to revoke that supervision, or an order
issuing a warrant for McCowan’s arrest. Further, the state revocation motion
and order were not filed until June 2018—a month after his federal revocation
proceedings in May 2018. McCowan only appended these documents to his
brief on appeal before this court. Likewise, the conduct underlying McCowan’s
state revocation proceedings differs from the conduct underlying his federal
revocation proceedings so there is no indication that the district court should
have known that his federal revocation would necessarily lead to revocation of
his state community supervision. While § 5G1.3 applies to “anticipated”
sentences, McCowan cites no authority requiring the district court to apply its
provisions when the likelihood that a future sentence will be imposed is wholly
speculative. See United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010).
      The district court did not err, plainly or otherwise, in failing to consider
that McCowan may potentially receive a subsequent state court sentence after
imposing his federal revocation sentence. See Puckett, 556 U.S. at 135.
                                IV. Conclusion
      The judgment of the district court is AFFIRMED.




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