     Case: 10-11191     Document: 00511716941         Page: 1     Date Filed: 01/06/2012




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

                                                                            FILED
                                                                          January 6, 2012
                                     No. 10-11191
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUSSELL A. HUDSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:89-CR-126-1


Before KING, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Russell A. Hudson appeals the district court’s judgment revoking his term
of supervised release and sentencing him to 23 months of imprisonment and an
additional supervised release term of 13 months. Hudson timely appealed.
        Hudson first argues that the district court plainly erred in imposing his
sentence by considering factors identified in 18 U.S.C. § 3553(a)(2)(A), such as
the need “to provide just punishment for the offense” and its “seriousness.”
Because Hudson did not object in the district court to the court’s consideration

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-11191

of a prohibited factor in determining his sentence, we review only for plain error.
See United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir. 2007).
To show plain error, Hudson must show a forfeited error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, we have the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      After Hudson was sentenced, while the instant appeal was pending, we
decided United States v. Miller, 634 F.3d 841 (5th Cir. 2011), cert. denied, No. 10-
10784, 2011 WL 2148772 (Oct. 31, 2011). In Miller, 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.
      Our circuit has issued inconsistent cases on the subject of whether the
“plainness” of an error is judged at the time of sentencing or at the time of
appeal. Compare United States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir.
2005) (“‘Plain’ is synonymous with ‘clear’ or ‘obvious,’ and at a minimum,
contemplates an error which was clear under current law at the time of trial.”);
United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998) (same), with United
States v. Bishop, 603 F.3d 279, 281 (5th Cir.) (“We determine whether an alleged
error is plain by reference to existing law at the time of appeal.”), cert. denied,
131 S. Ct. 272 (2010); United States v. Gonzalez-Terrazas, 529 F.3d 293, 298 (5th
Cir. 2008) (“[T]he error need only be plain at the time of appellate
consideration.”); see also United States v. Gloria, No. 10-10423, 2011 WL
3966101 * 2 (5th Cir. Sept. 7, 2011)(unpublished)(concluding Miller error was
not plain because of circuit split at the time of sentencing). Accordingly, we
apply the earliest pronouncement of this determination following the Supreme
Court’s explication of the plain error factors in United States v. Olano, 507 U.S.

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                                  No. 10-11191

725, 734 (1993). United States v. Knowles, 29 F.3d 947 (5th Cir. 1994) (holding
that error is plain when it is plain at the time of appeal). Where “two previous
holdings or lines of precedent conflict, the earlier opinion controls and is the
binding precedent in this circuit.” United States v. Wheeler, 322 F.3d 823, 828
n.1 (5th Cir. 2003) (internal quotation marks omitted). Accordingly, we conclude
that the district court plainly erred in considering a factor under § 3553(a)(2)(A).
      We conclude that this error affected Hudson’s substantial rights.
Although the district court references factors it “should consider” under 3553(a)
in pronouncing the sentence, it discussed only two facts expressly not permitted
to be considered under Miller – the seriousness of the offense and punishment.
Thus, we conclude that the error resulted in the imposition of an impermissible
sentence affecting Hudson’s rights. Finally, we conclude that it is appropriate
to exercise our discretion to correct this error.
      We also review for plain error Hudson’s second argument, i.e., that the
district court erred by considering his need for rehabilitation in determining his
sentence. This argument is based on the Supreme Court’s recent decision in
Tapia v. United States, 131 S. Ct. 2382 (2011). In the wake of Tapia, however,
we have held that the limitations on the consideration of rehabilitation at issue
in Tapia do not apply in a revocation proceeding. See United States v. Breland,
647 F.3d 284, 287-90 (5th Cir. 2011). Therefore, this argument is foreclosed.
      Hudson’s sentence is REVERSED, and the case is remanded for
resentencing.




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