                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                        F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                          January 4, 2007

                                                                     Charles R. Fulbruge III
                                                                             Clerk
                               No. 05-20924


UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

KEVIN L. NEAL,

                                           Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 4:04-CR-179-ALL
                        --------------------

Before KING, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:*

     Defendant Kevin Neal appeals his sentence following revocation

of supervised release, arguing that the sentence is unreasonable

and that the court failed to let him allocute.             We affirm.

                                      I

     In 1998, Neal pleaded guilty in Missouri federal court to

possession with intent to distribute cocaine.                  After applying

several   sentencing    reductions,       the   court   gave   him    80   months

imprisonment followed by eight years of supervised release.                  After

serving about five years, Neal began his release on April 1, 2003,



     *
        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opinion should not be published and is not precedent except under the limited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.
                             No. 05-20924
                                  -2-

reporting to the probation office in the Southern District of

Texas.   On August 8 of that year, Houston police arrested Neal for

possession of marijuana.

      When Neal reported to U.S. probation on September 4, the

probation officer confronted him about the arrest.        Neal admitted

the   arrest   but   maintained   his   innocence;   probation   did   not

immediately move to revoke his release, and during the fall Neal

kept probation apprised of the case.        But when Neal appeared in

Texas court on January 2, 2004 to plead guilty to the marijuana

charge, he left the courthouse and didn’t return.

      Neal stopped reporting to probation after fleeing.         In March

2004, probation prepared a violation report and requested that the

Missouri district court transfer jurisdiction, which it did on

March 22.      On July 23, probation petitioned to revoke Neal’s

release, citing his arrest, his failure to report in person from

February through June 2004, and his failure to submit written

reports from January through May 2004. Neal eventually appeared in

state court on the marijuana charge, where he pleaded guilty and

was sentenced to four years imprisonment.            In September 2005,

probation served Neal with the revocation warrant and the district

court held a revocation hearing.

      At the hearing, Neal pleaded true to the allegations.        During

his subsequent colloquy with the court, Neal attempted to explain

that although he had pleaded guilty to the state charges, the drugs

weren’t his and he had plead guilty to avoid the risk of trial.
                             No. 05-20924
                                  -3-

The court pressed Neal, asking whether he lied to the state judge

or was lying to the court.         Neal conferred with counsel and

admitted “lying” to the state court.

      The court then questioned Neal about fleeing. Neal claimed he

fled because his lawyer wanted him to take a ten-year sentence and

threatened to stop representing him if he failed to do so, hence he

fled to get a new lawyer.    The court noted that he didn’t get a new

lawyer until six months later, after he was arrested on a fugitive

warrant; Neil claimed he was on his way back from Missouri to pay

the new lawyer when he was arrested.

      After Neal clarified how long he had served in prison, and

that he had reported to probation from August through January and

had   apprised   probation   of   his   marijuana   case,   the   court

rhetorically asked if Neal made it about four months between

release and committing another crime.       After Neal answered “yes,”

the court asked, “Anything else you want to tell me?”              Neal

responded that he had no “problem with drugs, I mean as far as

doing drugs and reporting and stuff like that.”        The court then

stated that Neal had “something to do with drugs,” citing his prior

conviction for possession with intent to distribute.         The court

then asked, “Anything else?”      After Neal explained that he had no

problem with reporting, the court stated that, “Well, then one of

the reasons that you didn’t have a problem is that he [apparently

the probation officer] told me what happened and I said, ‘Well,

just trust him a little bit more.’”           After a few more brief
                                  No. 05-20924
                                       -4-

exchanges, the court sentenced Neal to five years imprisonment and

adjourned the hearing.

     Because Neal possessed drugs while on supervised release, the

district court had to revoke release.1               The Guidelines policy

advisory range, determined by probation, was eight to fourteen

months; the maximum sentence was five years.2           Neal challenges the

five-year sentence, arguing that the sentence was unreasonable and

that the court insufficiently explained its sentence; he also

argues that the district court committed reversible plain error in

denying him his right to allocute.

                                       II

     Neal     asks    that   we   review    his   post-Booker   sentence   for

reasonableness, even though he never objected on reasonableness

grounds below.       The Government asks that we review for plain error

due to that lack of objection, alternatively that we review for

plain unreasonableness, the 18 U.S.C. § 3742(e) standard that, pre-

Booker, we used to review sentences on revocation.3               As we have




     1
         See 18 U.S.C. § 3583(g)(1).
     2
        See id. Neal was, independent of § 3583(g)(1), subject to a five-year
maximum because his prior offense was a Class A felony. See id. § 3583(e)(3).
     3
        See, e.g., United States v. Gonzales, 250 F.3d 923, 929-30 (5th Cir.
2001); United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996); United States
v. Mathena, 23 F.3d 87, 93 n.13 (5th Cir. 1994).
                                 No. 05-20924
                                      -5-

before,4 we don’t decide the standard of review because Neal’s

sentence is Booker reasonable.

      As we noted in United States v. Weese and United States v.

Hunter, this court has “routinely upheld” sentences on revocation

above the advisory policy range but within the statutory maximum.5

The five-year sentence here was such a sentence.                Moreover, the

record shows ample reason for the court’s sentence at the statutory

maximum - most notably, Neal used marijuana and absconded from the

law, and probably would’ve remained at large but for his arrest.6

Under these facts, the district court’s five-year sentence wasn’t

unreasonable.

      Relatedly, Neal claims that the district court’s explanation

for its sentence was inadequate under our post-Booker precedent.7

To the contrary, the court focused on Neal’s conviction, after a



      4
        See United States v. Weese, 2006 WL 2590309 (5th Cir. Sept. 8, 2006)
(declining to decide between plain error and Booker reasonableness); United
States v. Hidalgo-Peralta, 166 Fed. App’x 762, 2006 WL 346315 (5th Cir. Feb.
15, 2006) (same); United States v. Hunter, 188 Fed. App’x 315, 2006 WL 1977472
(5th Cir. July 13, 2006) (same); United States v. Hinson, 429 F.3d 114, 117
(5th Cir. 2005) (declining to decide between plain unreasonableness and Booker
unreasonableness); cf. United States v. Boykin, 2006 WL 616031 (5th Cir. Mar.
13, 2006) (applying plain error to unobjected-to sentence on revocation, but
where objection was to calculation of Guidelines, not to reasonableness of
sentence).

      5
          See Weese, 2006 WL 2590309, *1; Hunter, 2006 WL 1977472, *4.
      6
        Neal claimed that he fled to get a better lawyer and that when
arrested he was returning to Texas after getting such a lawyer, but the court,
of course, was free to disbelieve this story, particularly given the six-month
delay between his flight and arrest. In any event, even if the story were
true, the court could’ve properly levied a five-year sentence after finding
Neal’s excuse insufficient.
      7
        See, e.g., United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.
2005) (describing the explanation requirement).
                                  No. 05-20924
                                       -6-

guilty plea, for possession of marijuana, asking Neal about his

current, contradictory statement that the marijuana wasn’t his, and

the facts       behind   his   flight,    arrest,   and   failure   to   report.

Moreover, the sentencing transcript shows that the court knew of

the PSR and mentioned the “three violations” contained in the

petition for revocation; although it didn’t recite those violations

specifically, its detailed discussion of their facts makes lack of

recital irrelevant.        Although the court never explicitly mentioned

18 U.S.C. § 3553(a) or 18 U.S.C. § 3583(e), it’s clear the court

considered their factors.8         Consequently, the court’s explanation

was sufficient for Booker reasonableness review.9

                                         III

      Neal also argues that he was denied the right of allocution.

Where, as here, the defendant didn’t object below, we review for

plain error.10

      Federal Rule of Criminal Procedure 32 requires that the court

address the defendant personally and permit him to offer any

mitigating evidence.           The rule envisions a “personal colloquy”

between the judge and defendant, leaving “no room for doubt that



      8
        See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (“A
checklist recitation of the § 3553(a) factors is neither necessary nor
sufficient for a sentence to be reasonable.”).
      9
        The parties dispute to what extent the court relied on its ostensible
belief that earlier it had urged the probation office to show Neal leniency,
Neal urging that the court could not have shown any leniency because it had no
jurisdiction. Whatever the case, the transcript reveals that any such
consideration played little or no role in the court’s sentence.
      10
           See United States v. Reyna, 358 F.3d 344, 347 (5th Cir. 2004).
                                       No. 05-20924
                                            -7-

the defendant has been issued a personal invitation to speak;”11

“the court, the prosecutor, and the defendant must at the very

least interact in a manner that shows clearly and convincingly that

the defendant knew he had a right to speak on any subject of his

choosing prior to the imposition of sentence.”12

      The district court allowed Neal to speak, asking him “Anything

else you want to tell me?” and “Anything else?”.                           Neal argues that

because      those    questions        came     after       the    court    asked    several

questions about Neal’s state drug charges and failure to report, he

believed the court was asking him to respond more fully to those

questions. There is support for this argument.13 Nonetheless, even

assuming      error     that        affected    Neal’s       substantial       rights,      no

miscarriage of justice occurred.                     In United States v. Reyna,14 we

declined      to     adopt     “a     blanket    rule       that    once     prejudice      is

found...[the denial of the right to allocute] invariably requires

correction.”         Rather, to reverse we require the defendant to “show

some objective basis that would have moved the trial court to grant

a   lower     sentence;      otherwise,         it    can    hardly    be     said   that   a

miscarriage of justice has occurred.”15                       Here, Neal asserts only

conclusionally he was not given an opportunity to discuss his


      11
           See United States v. Echegollen-Barrueta, 195 F.3d 786, 789 (5th Cir.
1999).
      12
           See id.
      13
           See Echegollen-Barrueta, 195 F.3d at 789.

      14
           358 F.3d at 344.
      15
           United States v. Magwood, 445 F.3d 826, 830 (5th Cir. 2006).
                               No. 05-20924
                                    -8-

“family, background, his conduct in prison, his activities during

his months of successful supervised release, or other areas.”

However, he fails to allege any specific facts which, given the

entirety of the transcript, particularly the court’s focus on

Neal’s flight and drug use while on release, likely would’ve

convinced the district court to levy a more lenient sentence.16            In

short, Neal has failed to show a “miscarriage of justice.”

     AFFIRMED.




      16
         He also contends that he could have cleared up any misapprehension
the court had regarding whether it had acted in the case before jurisdiction
had been transferred to the Southern District of Texas, but he fails to state
how this would have affected the district court.
