     Case: 15-20726      Document: 00513753494         Page: 1    Date Filed: 11/09/2016




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

                                    No. 15-20726
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       November 9, 2016
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

ARCHIE LEE HARRIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:03-CR-5-1


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       In 2003, Archie Lee Harris pleaded guilty of two counts of possessing
with the intent to distribute more than 50 grams of cocaine base and was
sentenced to 210 months of imprisonment and five years of supervised release.
After two successful motions to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2), Harris was released from custody in 2011 and commenced his
supervised release term. Harris now appeals the district court’s judgment


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-20726

revoking his supervised release and sentencing him to three years of
imprisonment.     Harris contends that his above-guidelines sentence is
substantively unreasonable.
      We typically review a challenge to a sentence imposed on revocation of
supervised release under the “plainly unreasonable” standard. United States
v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). Under this standard, if there is no
procedural error, this court considers the substantive reasonableness of the
sentence imposed for an abuse of discretion and then, if the sentence is
determined to be unreasonable, considers whether “the error was obvious
under existing law.” Id. A sentence is substantively unreasonable if it “(1)
does not account for a factor that should have received significant weight, (2)
gives significant weight to an irrelevant or improper factor, or (3) represents a
clear error of judgment in balancing the sentencing factors.” United States v.
Warren, 720 F.3d 321, 332 (5th Cir. 2013) (internal quotation marks and
citation omitted). An unpreserved allegation of sentencing error, however, is
reviewed for plain error, meaning that it may be corrected only if it is clear or
obvious, affects the defendant’s substantial rights, and seriously affects the
fairness, integrity, or public reputation of judicial proceedings. United States
v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
      Plain error review applies to Harris’s argument that the district court
improperly relied upon the 18 U.S.C. § 3553(a)(2) sentencing factor of
promoting respect for the law, as he did not sufficiently raise this issue below.
See id. at 259. Harris’s objection at the revocation hearing that his sentence
“was higher than necessary to meet the ends of [§] 3553” said nothing about
the consideration of the allegedly prohibited factor and thus did not allow the
district court an opportunity to correct the alleged error. See United States v.




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                                 No. 15-20726

Marston, 452 F. App’x 463, 464 (5th Cir. 2011) (quoting United States v. Neal,
578 F.3d 270, 272 (5th Cir. 2009)).
      Where, as here, a defendant has possessed a controlled substance in
violation of the mandatory supervised release condition prohibiting such
unlawful possession, the district court is required to revoke the term of
supervised release and to sentence the defendant to a term of imprisonment
within the statutory maximum. 18 U.S.C. § 3583(d), (g)(1); see United States
v. Illies, 805 F.3d 607, 609 (5th Cir. 2015). When executing a mandatory
supervised release revocation under § 3583(g), a district court does not commit
clear or obvious error by considering the § 3553(a)(2) sentencing factors. Id.
Accordingly, to the extent that the district court relied upon the § 3553(a)(2)
factor of promoting respect for the law, there was no plain error. See Whitelaw,
580 F.3d at 260.
      It is questionable whether Harris sufficiently raised at sentencing all of
his alternative arguments on appeal regarding the extent of the guidelines
variance and the district court’s balancing of various sentencing factors. Since
Harris must establish under both the plain error and the plainly unreasonable
standards that the district court clearly or obviously erred in imposing his
sentence, see Miller, 634 F.3d at 843, Whitelaw, 580 F.3d at 260, Harris’s
remaining claims fail under either standard, as discussed below.
      There is no merit to Harris’s argument that the district court’s sentence
did not account for his productive work history, his drug addiction and
treatment struggles, and the fact that his violations were low level. Harris has
failed to establish that the district court did not implicitly consider these
factors, of which it was clearly aware, and, further, that such a lack of
consideration, if proven, constitutes a clear or obvious error. See United States
v. Kippers, 685 F.3d 491, 499 (5th Cir. 2012) (approving of implicit



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                                   No. 15-20726

consideration of § 3553(a) factors); Miller, 634 F.3d at 843; Whitelaw, 580 F.3d
at 260.
        There is likewise no merit to Harris’s argument that the district court
assigned excessive weight to the factors relating to his breach of trust and the
number of his violations. In United States v. Heard, 709 F.3d 413, 435 (5th
Cir. 2013) (internal brackets, quotation marks, and citation omitted), this court
rejected a defendant’s substantive reasonableness challenge to his sentence as
essentially a request for the reweighing of the § 3553(a) sentencing factors,
reasoning that “appellate review is highly deferential as the sentencing judge
is in a superior position to find facts and judge their import under § 3553(a).”
Harris has failed to establish that the district court committed a clear error of
judgment in balancing the sentencing factors. See Warren, 720 F.3d at 332;
Heard, 709 F.3d at 435; see also Miller, 634 F.3d at 843; Whitelaw, 580 F.3d at
260.
        Finally, there is no merit to Harris’s apparent complaint regarding the
extent of the 23-month upward variance from the guidelines range. This court
“ha[s] routinely affirmed revocation sentences exceeding the advisory range,
even where the sentence equals the statutory maximum.” Warren, 720 F.3d at
332 (internal quotation marks and citation omitted); see also Whitelaw, 580
F.3d at 265 (holding that a revocation sentence 26 months above the advisory
guidelines range did not constitute plain error because it was equal to the
three-year statutory maximum). Harris has failed to show that the district
court clearly erred in imposing a three-year prison sentence that was well
within the five-year statutory maximum.           See Miller, 634 F.3d at 843;
Whitelaw, 580 F.3d at 260.
        In light of the foregoing, the judgment of the district court is AFFIRMED.




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