     Case: 14-31133       Document: 00513042166         Page: 1     Date Filed: 05/13/2015




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


                                      No. 14-31133
                                                                              FILED
                                                                          May 13, 2015
                                    c/w No. 14-31134
                                   Summary Calendar                      Lyle W. Cayce
                                                                              Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOHN MARK PHILLIPS,

                                                  Defendant - Appellant



                   Appeals from the United States District Court
                       for the Western District of Louisiana
                             USDC No. 5:13-CR-190-1
                             USDC No. 5:13-CR-146-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Following his guilty-plea conviction for failing to register as a sex
offender, in violation of 18 U.S.C. § 2250(a), John Mark Phillips was sentenced
to 30-months’ imprisonment. The court also revoked his term of supervised



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-31133
                                 c/w No. 14-31134

release, imposed following Phillips’ 2011 conviction in the Western District of
Missouri, for failing to register as a sex offender, and imposed a 24-month
revocation sentence. Although he filed notices of appeal in both cases, Phillips’
brief in these consolidated appeals challenges only the revocation sentence. He
has, therefore, waived any challenge to his failure-to-register conviction and
the associated sentence. See, e.g., United States v. Thames, 214 F.3d 608, 611
n.3 (5th Cir. 2000).
      Phillips asserts the above-Sentencing Guidelines sentence, imposed
following   the    revocation   of   his   supervised   release,   is   procedurally
unreasonable, claiming the court failed to consider the 18 U.S.C. § 3553(a)
sentencing factors.
      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must still properly calculate the advisory Guidelines-sentencing
range for use in deciding on the sentence to impose. Gall v. United States, 552
U.S. 38, 51 (2007). Properly preserved challenges to revocation sentences are
reviewed under the “plainly unreasonable” standard. United States v. Miller,
634 F.3d 841, 843 (5th Cir. 2011). Because Phillips did not raise in district
court the challenge he presents on appeal, review is only for plain error. E.g.,
United States v. Whitelaw, 580 F.3d 256, 259–60 (5th Cir. 2009). Under that
standard, he must show a forfeited plain (clear or obvious) error that affected
his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If
he does so, we have the discretion to correct the error, but should do so only if
it seriously affects the fairness, integrity, or public reputation of the
proceedings. Id.
      A court’s “failure to state reasons for a sentence outside the [G]uidelines
[sentencing] range is error that is clear or obvious”. Whitelaw, 580 F.3d at 262;
accord Rita v. United States, 551 U.S. 338, 356–57 (2007) (“Where the judge


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imposes a sentence outside the Guidelines, the judge will explain why he has
done so.”). Similar to Whitelaw, the court committed clear or obvious error by
imposing a revocation sentence of 24 months’ imprisonment (the maximum
prison sentence, 18 U.S.C. § 3583(e)(3)), which is greater than the advisory
Guidelines sentencing range of eight to 14 months, without explaining
explicitly its reasoning.
      Phillips, however, fails to show how this error affected his substantial
rights. E.g., Whitelaw, 580 F.3d at 262–65. Although the district court did not
explicitly state at sentencing that it considered the § 3553(a) sentencing factors
in selecting Phillips’ revocation sentence, it stated that it sentenced Phillips
“pursuant to the Sentencing Reform Act of 1984”, which sets forth the
applicable § 3553(a) factors to be considered when determining the appropriate
sentence for a supervised release violation. See, e.g., United States v. Perez,
260 F. App’x 720, 722 (5th Cir. 2007) (per curiam); 18 U.S.C. § 3583(e); Pub. L.
98-473, 98 Stat. 1837 (1984). As discussed below, the record also reflects that
the court implicitly considered the permissible § 3553(a) factors. See, e.g.,
Whitelaw, 580 F.3d at 263–65; see also United States v. Gonzalez, 250 F.3d 923,
929 (5th Cir. 2001) (“Implicit consideration of the § 3553 factors is sufficient.”).
      At Phillips’ revocation hearing, the court considered the advisory-
Guidelines range of eight to 14 months imprisonment, letters from Phillips’
mother and sister, and Phillips’ allocution which included various, negative
factors. And, in the record for sentencing was the presentence investigation
report for the 2011 conviction in Missouri which detailed the nature and
characteristics of that offense and the history and characteristics of Phillips.
Furthermore, nothing in the record suggests the court considered any
inappropriate sentencing factor set forth in 18 U.S.C. § 3553(a)(2)(A). See, e.g.,
Miller, 634 F.3d at 843–44.


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      Last, nothing in the record suggests that an explicit statement of
consideration of the § 3553(a) factors would have resulted in a lesser sentence,
or that the court would impose a lesser sentence on remand. Whitelaw, 580
F.3d at 264–65.
      AFFIRMED.




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