     Case: 13-60313      Document: 00512762517         Page: 1    Date Filed: 09/09/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-60313
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 9, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DAVID GARLAND ATWOOD, II,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 5:04-CR-17-1


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       David Garland Atwood, II, appeals from the revocation of his supervised
release. He challenges the revocation proceedings at which he was found guilty
of three of the five alleged violations of the conditions of his supervised release
and his resulting above-guidelines revocation sentence of 72 total months of
imprisonment and a lifetime term of 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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      Atwood argues that the district court judge erred by not recusing himself
because he was assigned to related civil cases. He has not shown that the judge
abused his discretion. See 28 U.S.C. § 455; United States v. Anderson, 160 F.3d
231, 233 (5th Cir. 1998). Atwood alleges that the origin of the judge’s bias was
knowledge that he obtained while conducting his judicial duties, which is not
a basis for disqualification. See Conkling v. Turner, 138 F.3d 577, 592 (5th Cir.
2003). Also, his claim that the judge was biased because he made rulings
against him in the civil cases does not support a claim of prejudice justifying
recusal. See § 455(b); Liteky v. United States, 510 U.S. 540, 555 (1994). Atwood
also has not shown that the judge’s assignment to the civil and revocation cases
would raise a question in the mind of a reasonable person as to the judge’s
impartiality and has not identified evidence to suggest that the judge could not
render a fair judgment. § 455(a); Anderson, 160 F.3d at 233; Liteky, 510 U.S.
at 455.
      Atwood further asserts that the district court violated Federal Rule of
Criminal Procedure 32.1 and his due process rights by not providing adequate
notice of two of the grounds on which he allegedly violated his supervised
release (i.e., Charges One and Three). However, he has not shown that the
district court plainly erred. See Puckett v. United States, 556 U.S. 129, 135
(2009); United States v. Magwood, 445 F.3d 826, 828 (5th Cir. 2006). He was
found not guilty of Charge One and, thus, any deficiency did not affect his
substantial rights. See Puckett, 566 U.S. at 135. With respect to Charge Three,
the revocation petition set forth the nature of the charge and the essential facts
that the Government sought to prove and, thus, he had sufficient notice of the
purported violation to be able to prepare and present a defense. See FED.
R. CRIM. P. 32.1; Morrissey v. Brewer, 408 U.S. 471, 486-87 (1972). To the
extent that Atwood argues that he was denied a preliminary hearing, he



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likewise has not shown any effect on his substantial rights in light of the
disposition of the revocation hearing. See FED. R. CRIM. P. 32.1(b)(1)(A), (B);
Puckett, 556 U.S. at 135.
      Atwood maintains that the evidence was insufficient to prove that he
violated the three conditions of his supervised release of which he was found
guilty. A district court does not abuse its discretion in revoking a defendant’s
supervised release if, viewing the evidence in the light most favorable to the
Government, a preponderance of the evidence supports that a defendant
violated the conditions of supervised release. United States v. McCormick, 54
F.3d 214, 219 (5th Cir. 1995); United States v. Alaniz-Alaniz, 38 F.3d 788, 792
(5th Cir. 1994); see § 3583(e)(3).
      The record supports that the district court had a sufficient basis to find
that Atwood was guilty of the allegation that he engaged in criminal activity
leading to his arrest for trespassing. The evidence reflected that, despite being
warned that he was not allowed in areas that the City of Vicksburg controlled
for purposes of the Miss Mississippi Pageant, Atwood three times breached the
established perimeter and entered restricted areas without authorization. To
the extent that he argues that his arrest violated the First Amendment, he has
not shown that probable cause did not exist to arrest him for trespassing. See
Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008); United States v. McCowan,
469 F.3d 386, 390 (5th Cir. 2006).
      The district court likewise had a sufficient basis to conclude that Atwood
violated the condition requiring him to register as a sex offender. The evidence
showed that Atwood violated Mississippi law by staying at the home of Roger
Cole in Pearl, Mississippi, for at least 14 days between May 2011 and August
2011 without properly registering the address as a temporary residence. See
MISS. CODE ANN. §§ 45-33-23(h), 45-33-25(c). While Atwood arguably offered



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competing evidence, the district court found it not to be credible; we must defer
to the district court’s credibility determinations and consider the evidence in
the light most favorable to the Government. See United States v. Goncalves,
613 F.3d 601, 609 (5th Cir. 2010); Alaniz-Alaniz, 38 F.3d at 792.
      The record further reflects that the district court had a sufficient basis
to find that Atwood violated the condition requiring him to keep a daily log of
websites that he visited on his personal computer. The evidence showed that
he was unable to produce to his probation officer a physical log of the websites
that he visited and that he admitted his noncompliance. To the extent that he
argues that a log automatically compiled by his computer would satisfy the
condition, his claim lacks merit because it is not a commonsense reading of the
condition, and the record supported that Atwood was aware that the condition
required production of a physical log. See United States v. Paul, 274 F.3d 155,
167 (5th Cir. 2001).
      Atwood argues that the district court violated his double jeopardy rights
by sentencing him based on the conduct underlying Charge One, which he was
found not guilty of violating. Atwood has not shown reversible plain error. See
United States v. Odutayo, 406 F.3d 386, 392 (5th Cir. 2005). We have held that
double jeopardy does not apply to a revocation proceeding, although in different
contexts. See United States v. Whitney, 649 F.2d 296, 297-98 (5th Cir. Unit B
1981). In any event, even if it does apply, the sentencing court was permitted
to consider the facts regarding Charge One without violating double jeopardy
principles. See United States v. Watts, 519 U.S. 148, 153 (1997); Witte v. United
States, 515 U.S. 389, 393 (1995); see also 18 U.S.C. § 3661; U.S.S.G. §§ 1B1.3,
1B1.4.
      Atwood’s claim that admission of testimony from the alleged victims and
their mothers violated the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771,



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because the witnesses were not “crime victims” for purposes of the statute is
also unavailing. The witnesses did not testify as victims of Charge One and
instead testified about Atwood’s character, which was relevant for purposes of
sentencing. Thus, Atwood has not shown plain error on this basis. See Puckett,
556 U.S. at 135.
      Atwood asserts that the district court violated Federal Rule of Criminal
Procedure 32.1 by limiting his ability to allocute and offer mitigation evidence.
However, the district court did not plainly err. See United States v. Reyna, 358
F.3d 344, 350-51 (5th Cir. 2004) (en banc). The record establishes, and Atwood
concedes, that he had the opportunity to offer an extensive allocution. To the
extent that Atwood argues that he was discouraged from raising several issues
that he sought to discuss, the record reflects that he had a meaningful chance
to address the issues that he wished to discuss, and he has not established that
the district court was required to permit him to introduce new evidence or offer
arguments not based on previously introduced evidence. Accordingly, Atwood
has not shown clear or obvious error. See id. at 347, 350. Likewise, he has not
shown that any error committed by the district court in this regard warrants
the exercise of this court’s discretion. See Magwood, 445 F.3d at 830.
      Atwood contests his revocation sentence on various grounds. He argues
that the district court selected his sentence for the impermissible reasons of
punishing him for the seriousness of his offense and promoting respect for the
law; the district court did not properly consider and justify its sentence based
upon the 18 U.S.C. § 3553(a) sentencing factors or the policy statements; the
district court based his sentence on clearly erroneous facts; and his 72-month
sentence was excessive.      We review preserved challenges to revocation
sentences, as here, under the deferential plainly unreasonable standard. See
United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).



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      The record does not reflect that the district court relied on the improper
factors listed in § 3553(a)(2)(A) in selecting Atwood’s sentence. See id. at 844.
Instead, the court cited permissible § 3553(a) factors to explain its selection of
sentence and found that these factors merited a sentence outside the guidelines
range; the court made an individualized assessment based on Atwood’s history
and characteristics, the nature and circumstances of the offense, and the need
to protect the public; selected a sentence that it believed was merited in light
of those factors; and noted those factors in explaining the sentence imposed.
See § 3553(a)(1), (a)(2)(C); Miller, 634 F.3d at 844; Rita v. United States, 551
U.S. 338, 357 (2007). The district court also reviewed Atwood’s mitigation
arguments and evidence, and any disagreement that Atwood has with the
court’s weighing of the § 3553(a) factors does not establish that his sentence is
unreasonable, and certainly not plainly unreasonable. See Gall v. United
States, 552 U.S. 38, 51-52, 56-60 (2007).
      Further, Atwood has not shown that the district court erred by basing
his sentence on clearly erroneous facts. See United States v. Warren, 720 F.3d
321, 326 (5th Cir. 2013). The district court did not find that Atwood committed
sex offenses in the instant case but rather that his failure to register created
the circumstances that would allow him to commit the acts that the sex-
offender registration condition was designed to prevent and which he had been
convicted of committing previously. Moreover, there was evidence offered at
sentencing that Atwood used aliases and false identities in his dealings with
the alleged victims of Charge One and their mothers, and, thus, that finding
was not clearly erroneous. See id. Also, contrary to Atwood’s claim, the record
does not support that the district court affirmatively found that Atwood had
HIV or herpes; the district court noted at sentencing that the evidence on the
issue was inconclusive and irrelevant to the sentence imposed and indicated in



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                                   No. 13-60313

the Statement of Reasons (SOR) that it merely considered the evidence without
making any particular finding.
         Atwood’s 72-month revocation sentence was not excessive. The district
court may impose any sentence that falls within the statutory maximum prison
term allowed for the revocation sentence. See § 3583(e)(3); United States v.
McKinney, 520 F.3d 425, 427 (5th Cir. 2008). Atwood’s sentence was equal to,
but did not exceed the statutory maximum and, therefore, it was not plainly
unreasonable. See Warren, 720 F.3d at 324-25, 332-33.
         Atwood alleges that the oral pronouncement of sentence conflicts with
the SOR because, whereas the district court at sentencing stated that it was
not certain whether Atwood had HIV and herpes, the SOR cited the fact that
Atwood had the conditions as a basis for the sentence imposed. However, he
has not shown any conflict; the district court noted at sentencing and in the
SOR that it reviewed the evidence, made no finding whether Atwood had the
conditions, and found that the sentence imposed was merited apart from the
issue.
         Atwood argues that his due process rights were violated because Roger
Cole gave false testimony at the revocation hearing that was inconsistent with
a written statement that he gave to law enforcement. However, Atwood has
not shown that the district court plainly erred in admitting the testimony. See
Puckett, 556 U.S. at 135. He specifically has not established that the issues on
which Cole allegedly testified falsely were material.       See United States v.
Mason, 293 F.3d 826, 828 (5th Cir. 2002).
         Finally, Atwood contends that the cumulative effect of the errors in his
revocation proceedings warrant reversal. However, he has not shown that the
cumulative effect of any errors precluded a fundamentally fair proceeding. See
United States v. Fields, 483 F.3d 313, 362 (5th Cir. 2007).



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      Accordingly, the judgment of the district court is AFFIRMED. Atwood’s
motion to supplement the record, to open and review trial exhibits, and to have
the case reassigned to a different judge on remand are DENIED.




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