     Case: 11-10562     Document: 00511767039         Page: 1     Date Filed: 02/24/2012




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

                                                                            FILED
                                                                         February 24, 2012
                                     No. 11-10562
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WELLIE ELISHA WOODSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:08-CR-100-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        After Defendant-Appellant Wellie Elisha Woodson admitted violating
conditions of his supervised release, the district court sentenced Woodson to two
consecutive 18-month terms of imprisonment, for a total of 36 months, to be
followed by two concurrent 24-month terms of supervised release. Woodson
claims that his above-guidelines revocation sentence is substantively
unreasonable because it represents a clear error of judgment in balancing the
sentencing factors.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10562    Document: 00511767039       Page: 2   Date Filed: 02/24/2012

                                   No. 11-10562

      To preserve the issue, Woodson asserts that revocation sentences should
be reviewed for “reasonableness.” In fact, we review revocation sentences under
18 U.S.C. § 3742(a)(4)’s “plainly unreasonable” standard. United States v.
Miller, 634 F.3d 841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011). Under
this standard, we first consider “whether the district court procedurally erred
before we consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Id. (internal quotation marks and
citation omitted); see also Gall v. United States, 552 U.S. 38, 51 (2007). In
reviewing for substantive reasonableness, we “take into account the totality of
the circumstances, including the extent of any variance from the Guidelines
range . . . but must give due deference to the district court’s decision that the [18
U.S.C.] § 3553(a) factors, on a whole, justify the extent of the variance.” Gall,
552 U.S. at 51.
      Woodson asserts that he was sentenced to three years in prison for twice
using marijuana, making an insufficient effort to find a job, falling behind on
restitution, missing four counseling sessions, and skipping one urine test.
Woodson claims that his three year sentence is (1) considerably higher than the
terms of imprisonment imposed for his original, more serious crimes of
conviction, bank robbery and using a firearm during that crime; (2) considerably
higher than the advisory guidelines range for his violations of supervised
release; and (3) the type of sentence a person in criminal history category I could
have received at original sentencing for offenses such as, inter alia, involuntary
manslaughter, aggravated assault involving the discharge of a firearm and
bodily injury, and distribution of 80 kilograms of marijuana. He also contends
that this sentence ignores important mitigating information, such as his “success
on supervised release for more than a year before his last revocation, a fact that
surely predicts a higher chance of successful reintegration to society,” and “his
serious efforts to find employment, even well below his experience level, before
his revocation.”

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   Case: 11-10562    Document: 00511767039      Page: 3   Date Filed: 02/24/2012

                                  No. 11-10562

      These arguments ignore that Woodson admitted that he violated the
conditions of his second chance at supervised release by twice testing positive for
the use of marijuana, skipping drug testing and treatment sessions, quitting his
job and failing to submit job search logs as instructed by his probation officer,
failing to make restitution payments, and failing to contact his probation officer
as instructed after failing his drug test. The district court considered that this
was Woodson’s second failed attempt at supervised release and that his 18
months in prison following his first revocation did not serve as a “wake-up call”
to Woodson. Because Woodson’s conduct violated specific conditions of his
release for a second time under supervision, the severity of his conduct compared
to that of others not in his position is of no moment. See 18 U.S.C. § 3553(a)(6).
Similarly, his comparison of his second revocation sentence to original sentences
for other crimes is misplaced. See Miller, 634 F.3d at 843. The district court
considered the advisory guidelines range suggested by the relevant policy
statements, which it rejected because it did not believe that the range
adequately addressed the § 3553(a) factors it should consider under 18 U.S.C.
§ 3583(e)(3).
      None of Woodson’s arguments shows that the district court abused its
discretion in its consideration of the relevant sentencing factors. In light of all
of the circumstances and the due deference owed to the district court, we hold
that the sentence imposed is not substantively unreasonable. See Gall, 552 U.S.
at 51. The judgment of the district court is AFFIRMED.




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