     Case: 16-60081      Document: 00513725194         Page: 1    Date Filed: 10/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-60081                                FILED
                                  Summary Calendar                       October 19, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

THOMAS ANTHONY BAIN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:13-CR-23-1


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Thomas Anthony Bain pleaded guilty in 2004 to two drug offenses and
was sentenced to concurrent terms of 121 months of imprisonment to be
followed by concurrent terms of 60 months on supervised release. In 2014, the
district court revoked his supervised release and imposed a term of
imprisonment of 10 months to be followed by “a term” of supervised release of
36 months. In 2016, the district court again revoked Bain’s supervised release


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60081

and imposed two consecutive 24-month sentences of imprisonment, each of
which was above the advisory range of three to nine months of imprisonment.
He now appeals from this second revocation of supervised release, asserting
two issues.
      First, Bain contends that the district court plainly erred by imposing two
consecutive 24-month terms of imprisonment because, after the 2014
revocation, there was only one term of supervised release for the district court
to revoke. He did not preserve this issue, and we review for plain error. United
States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). To prevail on plain-error
review, a defendant “must show an error that is clear or obvious and affects
his substantial rights.” Id. at 260. If the defendant makes such a showing,
this court “has the discretion to correct the error but only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id.
      Several of our sister circuits have held that a district court errs when it
revokes “a term” of supervised release and imposes multiple sentences of
imprisonment or supervised release. See United States v. Eskridge, 445 F.3d
930, 934-35 (7th Cir. 2006); United States v. Dillon, 725 F.3d 362, 368 (3d Cir.
2013); United States v. Starnes, 376 F. App’x 942, 945-46 (11th Cir. 2010). We
need not adopt the reasoning of any of those cases today because, even if the
district court clearly or obviously erred in this case, Bain has not established
that the error affected his substantial rights.
      “A sentencing error affects a defendant’s substantial rights if he can
show a reasonable probability that, but for the district court’s error, he would
have received a lesser sentence.” United States v. Rivera, 784 F.3d 1012, 1018
(5th Cir. 2015) (quoting United States v. John, 597 F.3d 263, 284-85 (5th Cir.
2010)) (alteration omitted). Assuming that the district court erred by imposing
two terms of imprisonment instead of one, the 48-month sum of those two



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                                  No. 16-60081

consecutive terms was still less than the five-year statutory maximum
applicable to a single term of post-revocation imprisonment.            18 U.S.C.
§§ 3559(a)(1), 3583(e)(3). Accordingly, the district court could have imposed
the same length of imprisonment as a single 48-month term, and Bain fails to
explain how any error as to the number of sentences imposed otherwise
affected his sentence. He therefore fails at the third prong of plain-error review
with respect to this issue.
      Second, Bain contends that the district court committed procedural error
by insufficiently explaining the reasons for sentencing him to 48 months of
imprisonment. His general objection to the sentence as unreasonable and his
specific objection to the district court’s references to drug rehabilitation did not
preserve this issue, and we review for plain error. See United States v. Kippers,
685 F.3d 491, 497 (5th Cir. 2012). “Under plain error review, a district court
commits clear and obvious error when it fails to state reasons for a sentence
outside the guidelines range.” Id. at 498 (citing Whitelaw, 580 F.3d at 261-62).
“But, this court has explained, a district court need not engage in a ‘checklist
recitation of the section 3553(a) factors.’” Id. (quoting United States v. Smith,
440 F.3d 704, 707 (5th Cir. 2006)).
      In Kippers, we held that the district court adequately explained its “leap
from an advisory range of three to nine months of imprisonment” to a 48-month
sentence.   See id. at 498-99.      Here, the district court’s explanation for
sentencing Bain to a comparable above-guidelines length of imprisonment was
at least as thorough as that held to be sufficient in Kippers.              See id.
Accordingly, Bain has not established any procedural error, let alone plain
error. The additional arguments he raised for the first time in his reply brief
are waived. United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).
      AFFIRMED.



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