     Case: 12-51059       Document: 00512273940         Page: 1     Date Filed: 06/14/2013




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

                                                                            FILED
                                                                           June 14, 2013
                                     No. 12-51059
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CHRISTOPHER CLARK DAY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:09-CR-325-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Christopher Clark Day appeals the 18-months’ imprisonment imposed
following revocation of his supervised release; the supervised release was part
of his original sentence for attempting to manufacture psychedelic mushrooms,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. He contends his
sentence, which exceeds the advisory Guidelines sentencing range, but is within
the statutory maximum, is procedurally unreasonable because the district court
failed to articulate its reasons for imposing the sentence.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-51059

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that
respect, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Revocation sentences generally are reviewed under 18 U.S.C. § 3742(a)’s
“plainly unreasonable” standard. United States v. Miller, 634 F.3d 841, 843 (5th
Cir. 2011). Because Day did not object in district court, however, review is only
for plain error. E.g., United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir.
2009). (Day raises the issue of the applicable standard of review only to preserve
it for possible further review.) Under the plain-error standard, Day must show
a clear or obvious error that affected his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). He fails to do so.
      The record reflects that, prior to imposing sentence, the court considered:
the Guideline policy statement range of 7 to 13 months’ imprisonment, U.S.S.G.
§ 7B1.4(a); Day’s multiple violations of supervised release; his comments at the
revocation hearing; and defense counsel’s contentions in mitigation of sentence.
Although the Government chose not to address the issue of sentencing at the
revocation hearing, in its motion to revoke, it asked the court to revoke
supervised release and require Day “to serve in prison all of the term of
supervised release authorized by statute for the offense that resulted in such
term of supervised release”. Moreover, the district judge who imposed sentence
had presided at Day’s original criminal proceeding. The record reflects the court
considered the nature and circumstances of Day’s supervised release violations,
and at least implicitly considered his history and characteristics. See 18 U.S.C.
§ 3553(a)(1) (upon imposition of sentence, court shall consider, inter alia, nature

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                                 No. 12-51059

and circumstances of offense, and history and characteristics of defendant);
Whitelaw, 580 F.3d at 262-65; United States v. Gonzales, 250 F.3d 923, 930 (5th
Cir. 2001) (court may consider implicitly § 3553 factors in determining sentence
after finding defendant violated condition of supervised release). Although the
court’s statement in imposing sentence was brief, its explanation in the context
of the revocation hearing was sufficient. E.g., Whitelaw, 580 F.3d at 261-62
(although lack of explicit statement setting forth reasons for imposition of
sentence outside of that recommended in advisory Guidelines range was clear
or obvious error, court’s adopting implicitly Government’s rationale for sentence
showed defendant not prejudiced). “By reviewing the record of the sentencing
proceedings in this case, [our court is] able to conduct a meaningful appellate
review.” Id. at 264. Nothing in the record suggests a more thorough explanation
would have resulted in a shorter sentence, and there is no suggestion in the
record the court considered any improper factor or would impose a different
sentence on remand. See id. at 264-65.
      AFFIRMED.




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