United States v. Geer

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50319
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ROBIN LYNN VANCE GEER,

Defendant - Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:07-CR-16-1

Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Robin Lynn Vance Geer challenges the statutory maximum 60-month
sentence imposed following the fifth revocation of his supervised release. He
contends: the district court imposed a retributive sentence based on
impermissible sentencing factors; and his sentence is substantively
unreasonable.

*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
United States Court of Appeals
Fifth Circuit
FILED
April 6, 2020

Lyle W. Cayce
Clerk
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No. 19-50319
2
We review sentences imposed on revocation of supervised release under
the plainly-unreasonable standard. United States v. Sanchez, 900 F.3d 678,
682 (5th Cir. 2018). Such a sentence’s substantive reasonableness is subject to
the same standards used to review whether an initial sentence is substantively
reasonable. See United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013)
(citing cases addressing an initial sentence in reviewing a revocation sentence).
We consider “the totality of the circumstances, including the extent of any
variance from the Guidelines range” and afford “due deference to the district
court’s decision that the § 3553(a) [sentencing] factors, on a whole, justify the
extent of the variance”. Gall v. United States, 552 U.S. 38, 51 (2007).
“A sentence is substantively unreasonable if it (1) does not account for a
factor that should have received significant weight, (2) gives significant weight
to an irrelevant or improper factor, or (3) represents a clear error of judgment
in balancing the sentencing factors.” Warren, 720 F.3d at 332 (internal
quotation marks and citation omitted). “[A] sentencing error occurs when an
impermissible consideration is a dominant factor in the court’s revocation
sentence, but not when it is merely a secondary concern or an additional
justification for the sentence”. United States v. Rivera, 784 F.3d 1012, 1017
(5th Cir. 2015) (citation omitted). Sentences imposed upon revocation of
supervised release may not take into account the retributive objectives of 18
U.S.C. § 3553(a)(2)(A), Sanchez, 900 F.3d at 683–84 & n.3 (citations omitted),
which consist of “the need for the sentence imposed . . . to reflect the
seriousness of the [supervised-release violation], to promote respect for the
law, and to provide just punishment for the [supervised-release violation]”.
Geer’s contention the court impermissibly considered 18 U.S.C.
§ 3553(a)(2)(A)’s factors is unfounded. The record demonstrates the court
based the sentence on Geer’s history and characteristics, the need for
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No. 19-50319
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deterrence, and his breach of the court’s trust. These are permissible
considerations in a revocation hearing. See 18 U.S.C. § 3583(e); § 3553(a)(1),
(a)(2)(B); U.S.S.G. ch.7, pt. A, introductory cmt.
Regarding the substantive reasonableness of Geer’s sentence, the court:
considered Geer’s request for a fair sentence in the light of his nonviolent
violations of his supervised release; addressed the numerous revocations of his
supervised release for drug use; discussed the fact he had been given the
opportunity to participate in substance-abuse treatment; and heard his
declaration he would not discontinue his drug use, even though his daughter
was expecting a child. Further, as stated above, the court considered relevant
sentencing factors, including his personal history and characteristics and the
need to deter him. See 18 U.S.C. § 3553(a)(1), (a)(2)(B). Although Geer’s 60-
month sentence exceeded the recommended range of eight-14 months, it was
within the statutory maximum. See id. § 3583(e)(3). “We have routinely
affirmed revocation sentences exceeding the advisory range, even where the
sentence equals the statutory maximum.” Warren, 720 F.3d at 332 (citations
omitted).
AFFIRMED.
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