     Case: 10-20580     Document: 00511622359         Page: 1     Date Filed: 10/04/2011




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

                                                                            FILED
                                                                          October 4, 2011
                                     No. 10-20580
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LEROY ARTHUR MARSTON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:03-CR-360-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Leroy Arthur Marston appeals the sentence imposed after revocation of
supervised release. The 24-month sentence is the statutory maximum sentence,
above the advisory guidelines range of eight to 14 months.
        Primarily, Marston contends that the district court committed plain error
by providing inadequate reasons for imposing the maximum sentence. The
court’s explanation was adequate to show that the court considered the parties’
arguments and had a reasoned basis for exercising its sentencing authority. See

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20580

Rita v. United States, 551 U.S. 338, 356 (2007). Further, Marston cannot show
that a better explanation likely would have resulted in a lesser sentence. He
thus fails to show that any error affected his substantial rights as is required
under plain-error review. See United States v. Whitelaw, 580 F.3d 256, 259 (5th
Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 364-65 (5th Cir.
2009).
      Marston further contends that the district court improperly based the
sentence on “just punishment,” a factor listed in 18 U.S.C. § 3553(a)(2)(A) and
thus barred from consideration by § 3583(e) and United States v. Miller, 634 F.3d
841, 843 (5th Cir. 2011), petition for cert. filed (May 27, 2011) (No. 10-10784).
He argues that this claim is preserved and thus reviewable under the “plainly
unreasonable” standard rather than for plain error. Plain-error review applies
because Marston’s general objection to the harshness of the sentence said
nothing about the consideration of any prohibited factor, and thus did not “alert
the district court to the nature of the alleged error and to provide an opportunity
for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). In any
event, Miller indicates that the “plainly unreasonable” standard is akin to the
plain-error standard in that a defendant must show that his sentence resulted
from an error that “was obvious under existing law.” Miller, 634 F.3d at 843.
Given this evident similarity between the “plainly unreasonable” and “plain
error” standards, the claim lacks merit under either standard.
      We first note that revocation of Marston’s supervised release was
mandated by § 3583(g) because Marston violated an express condition of
supervised release by being convicted of a drug possession crime punishable by
more than one year. See § 3583(g). Section 3583(g) does not invoke the
sentencing factors of § 3553(a) or the limits imposed by the first clause of
§3583(e). See § 3583(g); United States v. Giddings, 37 F.3d 1091, 1095 (5th Cir.
1994) (noting that a court need not consider § 3553(a) when revocation is
mandated by § 3583(g)). Marston fails to show that it is “clear or obvious” or

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                                  No. 10-20580

“obvious under existing law” that a sentence imposed when revocation is
mandatory must be limited by § 3583(e). Cf. United States v. Larison, 432 F.3d
921, 923 (8th Cir. 2006) (holding that “the district court’s [sentencing] decision
was not constrained by the factors specifically enunciated in 18 U.S.C. § 3583(e)”
where revocation was mandated by § 3583(g)).
      In addition, Marston asserts that the district court relied on the
“irrelevant” factor of “incapacitation.”     Incapacitation can reasonably be
interpreted to mean the protection of the public by negating Marston’s capacity
to engage in criminal acts. Protecting the public is a well-recognized sentencing
factor. See § 3553(a)(2)(C). Marston fails to show that the court’s mention of
incapacitation was a clear or obvious error under Miller or Whitelaw. See Miller,
634 F.3d at 843; Whitelaw, 580 F.3d at 260.
      Marston also argues that the district court gave improper consideration
to his mental illness and his five years of solitary confinement in state prison.
He says the sentence created “an unwarranted disparity with similarly-situated
defendants.” These arguments implicitly do no more than ask us to reweigh
sentencing factors and substitute our judgment for that of the district court.
This is improper in light of the deference due to a sentencing court. See Gall,
552 U.S. at 51.
      We have routinely affirmed revocation sentences that exceeded the
advisory guideline range but not the statutory maximum. See Whitelaw, 580
F.3d at 265 (citing cases); United States v. Morales, 299 F. App’x 455, 457-58 (5th
Cir. 2008); United States v. Neal, 212 F. App’x 328, 331 (5th Cir. 2007). Marston
has not shown that his sentence was either plainly erroneous or plainly
unreasonable. The judgment of the district court is therefore AFFIRMED.




CATHARINA HAYNES, Circuit Judge, concurs in the judgment only.



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