     Case: 15-10473      Document: 00513345863         Page: 1    Date Filed: 01/18/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-10473                                  FILED
                                  Summary Calendar                         January 18, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

v.

SHAWN GILCHREST,

                                                 Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 2:11-CR-4


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Shawn Gilchrest appeals the 18-month above-guidelines sentence
imposed by the district court following the mandatory revocation of his
supervised release—his second such revocation—stemming from his conviction
for aiding and abetting the theft or receipt of stolen mail.                           See 18
U.S.C. § 3583(g).      The instant revocation, like the first, was based on
Gilchrest’s continued use of illicit drugs, in violation of the standard conditions


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10473

of his release.    On appeal, Gilchrest contends that his above-guidelines
sentence is procedurally and substantively unreasonable. Because Gilchrest
failed to lodge an objection following the imposition of the challenged sentence,
we review the district court’s decision for plain error. See United States v.
Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009); Puckett v. United States, 556 U.S.
129, 135 (2009).
      Gilchrest argues that his sentence is procedurally unreasonable because
the district court failed to adequately explain its decision to impose an
above-guidelines sentence. He asserts in particular that the district court
failed to address his pleas for a lenient sentence and did not attempt to apply
the cited 18 U.S.C. § 3553(a) factors of punishment and deterrence to the
specific facts of his case. The sentencing transcript reflects that the district
court heard argument from both Gilchrest and his counsel in favor of a
within-guidelines sentence. The court also had before it a significant record
evidencing Gilchrest’s ongoing inability to comply with the conditions of his
supervised release.       Given those facts, its decision to impose an
above-guidelines sentence represents an implicit rejection of Gilchrest’s pleas
for leniency. See Rita v. United States, 551 U.S. 338, 356-59 (2007); United
States v. Rodriguez, 523 F.3d 519, 524-26 (5th Cir. 2008).        Moreover, the
district court invoked the sentencing factors of punishment and deterrence in
specific reference to Gilchrest’s continued noncompliance with the mandatory
conditions of his release, which was the very basis for the revocation.
      Although brief, the district court’s stated reasons “adequately explain
the chosen sentence to allow for meaningful appellate review and to promote
the perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007).
Accordingly, the court below did not commit clear or obvious procedural error
with respect to its explanation of Gilchrest’s above-guidelines revocation



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                                  No. 15-10473

sentence. See Puckett, 556 U.S. at 135. Moreover, even if there were error,
Gilchrest fails to show that, “but for the error, he would have received a lesser
sentence.” United States v. Hebron, 684 F.3d 554, 559 (5th Cir. 2012).
        Gilchrest   further   contends   that   his   sentence   is   substantively
unreasonable because United States v. Miller, 634 F.3d 841, 844 (5th Cir.
2011), prohibited the district court from considering the need for punishment
in imposing a supervised release revocation sentence. Miller’s prohibition on
considering punishment, however, does not apply to sentences, like Gilchrest’s,
imposed following mandatory revocation under § 3583(g). See United States v.
Illies, 805 F.3d 607, 609 (5th Cir. 2015) (holding that a district court does not
clearly err by considering the § 3553(a)(2)(A) factors in imposing a revocation
sentence under § 3583(g)).
        Finally, Gilchrest asserts that the district court committed substantive
error in its balancing of the § 3553(a) sentencing factors by failing to give
adequate consideration to the nature and circumstances of his offenses, his
personal history and characteristics, or the need for the revocation sentence to
provide him with needed correctional treatment. As a court of review, we do
not second-guess the reasonable findings of the sentencing court, which “is in
a superior position to find facts and judge their import under § 3553(a) with
respect to a particular defendant.” United States v. Heard, 709 F.3d 413, 435
(5th Cir. 2013) (internal quotation marks and citation omitted). Nothing in the
record compels a finding that the district court’s balancing of the § 3553(a)
factors was unreasonable. Consequently, Gilchrest fails to show the existence
of clear or obvious substantive error in that regard. See Puckett, 556 U.S. at
135.
        The judgment of the district court is AFFIRMED.




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