                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                      UNITED STATES COURT OF APPEALS
                                                                     June 6, 2007
                          FOR THE FIFTH CIRCUIT
                                                              Charles R. Fulbruge III
                                                                      Clerk


                                  06-10674



     UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

                                     v.

     JOSEPH COLE CANTRELL,

                                             Defendant-Appellant.



         Appeal from the United States District Court for the
                 Northern District of Texas, Fort Worth
                          No. 4:06-cr-00045-A



Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Joseph    Cole    Cantrell   challenges    the   twenty-three     month

sentence imposed after the revocation of his supervised release.

Cantrell argues that the district court’s failure to articulate its

reasons for selecting a sentence above the advisory sentencing

range rendered his sentence unreasonable. Finding Cantrell has not

demonstrated error, plain or otherwise, we AFFIRM.



     *
       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this opinion should not be published and is not precedent except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.
     I.        BACKGROUND

     Cantrell pleaded guilty to possession of a firearm by a

convicted felon and was sentenced to 60 months of imprisonment and

three years of supervised release.              He began serving his term of

supervised release on November 28, 2005.

     Cantrell was arrested on May 18, 2006, for violating the terms

of his supervised release.         The government subsequently moved to

revoke, alleging that Cantrell had violated the terms of his

supervised release by: (1) using and possessing methamphetamine;

(2) failing to report as instructed by his probation officer; (3)

failing to participate in a drug aftercare program by missing urine

collection and counseling sessions; and (4) failing to comply with

home confinement conditions by not answering his telephone and

removing his leg monitor.           In the Supervised Release Violation

Report, the probation officer determined that Cantrell’s statutory

maximum sentence       was   24   months   of    imprisonment   and    that   his

advisory guidelines sentence range was 8-14 months of imprisonment.

     At the revocation hearing, Cantrell admitted to violating the

terms     of    his   supervised    release      by   using   and     possessing

methamphetamine and failing to participate in the drug aftercare

program.       The district court found that the remaining charges were

also true and revoked Cantrell’s supervised release.                The district

court sentenced Cantrell to 23 months of imprisonment and 13 months

of supervised release without any explanation of the reasons for

the sentence imposed.        The written judgment revoking Cantrell’s

                                       2
supervised release stated that the district court “considered all

factors set forth in 18 U.S.C. § 3553(a).”    Cantrell appeals.

     II.    ANALYSIS

     Cantrell challenges the sentence imposed after revocation of

his supervised release.    Cantrell contends that the district court

erred in sentencing him above the range suggested by the applicable

policy statement in light of the court’s failure to expressly

consider the advisory range and articulate findings to justify the

sentence imposed. Cantrell urges this Court to review the sentence

for reasonableness.1

     Prior to United States v. Booker, 543 U.S. 220 (2005), we

reviewed a sentence imposed after revocation of supervised release

to determine whether it was “in violation of the law or plainly

unreasonable.”    United States v. Mathena, 23 F.3d 87, 89 (5th Cir.

1994).     Subsequent to Booker, we have recognized that there is a

circuit split regarding whether Booker changed the standard of

review for revocation sentences from “plainly unreasonable” to

reasonableness.    United States v. Jones, __ F.3d __, Nos. 06-30535

& 06-30563, 2007 WL 1098433, *7 (5th Cir. April 13, 2007).        We

further recognized that other courts of appeals found the two


     1
         The government contends that this Court does not have
jurisdiction over the appeal because Cantrell failed to argue that
the sentence is plainly unreasonable. This contention is without
merit. Cantrell explicitly states that the standard of review is
either reasonableness or plainly unreasonable and urges this Court
to adopt reasonableness as the standard. The motion to dismiss
for lack of jurisdiction is denied.

                                  3
standards functionally equivalent.       Id.    Nonetheless, we did not

reach the   issue   because   the   appellant   had    not    preserved   the

objection and thus it was “subject only to plain error review on

appeal.”    Id. at *7.   Here, because Cantrell is precluded from

obtaining relief in any event, we will assume solely for the

purposes of this appeal that we would ultimately choose to follow

the circuits that have reviewed post-Booker revocation sentences

for reasonableness.2

     At the revocation hearing, Cantrell urged the district court

to sentence him within the advisory range.            Such a “generalized

request” does not provide a district court the “opportunity to

clarify its reasoning or correct any potential errors in its

understanding of the law at sentencing, and its efforts to reach a

correct judgment could be nullified on appeal.”          United States v.

Hernandez-Martinez, __ F.3d __, No. 06-40271, 2007 WL 1140327, *2

(5th Cir. April 18, 2007).

     Additionally, Cantrell asserts that the court did not state

that it considered the advisory sentencing range.            Cantrell admits

that at the hearing he “specifically argued for the district court

to follow the advisory imprisonment range of 8-14 months and argued


     2
          However, it should be noted that this Court has
indicated—though not held—that “[t]he Fourth Circuit persuasively
reasons that § 3742(a)(4), which authorizes the ‘plainly
unreasonable’   standard  for   revocation  sentences,   was  not
invalidated by Booker.” Hernandez-Martinez, 2007 WL 1140327 at *3
(citing United States v. Crudup, 461 F.3d 433, 437 (4th Cir.
2006)).

                                    4
that a sentence within that range was the presumptively reasonable

sentence.”      In    its    judgment    of   revocation    and    sentence,     the

district court expressly stated that it had considered the argument

of counsel.    Thus, the record indicates that the court considered

the advisory range.

     Cantrell also argues that his sentence is not reasonable

because the district court failed to articulate on the record its

reasons for deviating from the advisory sentencing range. Cantrell

failed to make this particular objection, thus depriving the

district court of an opportunity to remedy any error. We therefore

review this contention for plain error.                  To demonstrate plain

error, Cantrell must show there is:            (1) error; (2) that is plain;

(3) that     affects       substantial   rights;   and     (4)    that    the   error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.          Jones, 2007 WL 1098433 at *7.

     Prior to Booker, this Court had made clear that when imposing

a revocation sentence, “[i]mplicit consideration of the § 3553

factors is sufficient.”          United States v. Teran, 98 F.3d 831, 836

(5th Cir. 1996) (citing United States v. Whitebird, 55 F.3d 1007,

1010 (5th Cir. 1995)).          Because this Court has not yet required

district courts to expressly state their reasons for selecting a

revocation sentence, any such error could not now be plain.

     Moreover,       the    Second   Circuit,    which     reviews       post-Booker

revocation sentences for reasonableness, does not require explicit


                                         5
consideration of matters relevant to sentencing.   United States v.

Fleming, 397 F.3d 95, 100 (2d Cir. 2005).      The Second Circuit

explained that:

     [i]n this context, we continue to believe that no
     specific verbal formulations should be prescribed to
     demonstrate the adequate discharge of the duty to
     “consider” matters relevant to sentencing. As long as
     the judge is aware of both the statutory requirements and
     the sentencing range or ranges that are arguable
     applicable, and nothing in the record indicates
     misunderstanding about such materials or misperception
     about their relevance, we will accept that the requisite
     consideration has occurred.

Id.; but see United States v. Miqbel, 444 F.3d 273 (9th Cir. 2006)

(vacating revocation sentence because the district court failed to

state specific reasons for the particular sentence imposed).

     In the instant case, the judgment provided that “the court

considered all factors set forth in 18 U.S.C. § 3553(a).”    Such a

statement satisfies the requirement of implicit consideration of

the statutory factors.   It is undisputed that Cantrell’s sentence,

although above the advisory sentence suggested in the applicable

policy statement, is below the statutory maximum. Cantrell has not

shouldered his burden of demonstrating plain error.

     The district court’s judgment is AFFIRMED.       The motion to

dismiss for lack of jurisdiction is DENIED.




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