United States v. Green

* 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this opinion should not be published and is not precedent except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
F I L E D
January 9, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10968
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROCKY SHANE GREEN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:04-CR-52-ALL-C
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Rocky Shane Green has appealed the 18-month term of
imprisonment imposed on revocation of his probation. Green
contends that he should have been sentenced within the guideline-
imprisonment range for the original offense of conviction, that
is six to 12 months. Green concedes that the issue should be
reviewed for plain error. In United States v. Pena, 125 F.3d
285, 287 (5th Cir. 1997), we held that, upon revocation of
probation, the sentencing court is “not limited to the sentencing

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range available at the time of the initial sentence.” Any error
by the district court could not have been “clear or obvious” in
light of Pena. See United States v. Olano, 507 U.S. 725, 731-37
(1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994) (en banc).
Green contends that his sentence was imposed illegally, in
light of Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi
v. New Jersey, 530 U.S. 466 (2000), because he was sentenced to a
term of imprisonment exceeding the term to which he was
originally exposed based on the district court’s finding that he
had violated a condition of his probation. Green concedes that
this court’s review is for plain error. Green cannot show that
the district court erred.
In Blakely, the Supreme Court held that the Sixth Amendment
prohibits state sentences greater than “the maximum sentence a
judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.” 542 U.S. at 303
(emphasis omitted). The rule in Blakely was extended to the
Federal Sentencing Guidelines in United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005). In Booker, the Supreme Court
held that the mandatory system of enhancements established by the
United States Sentencing Guidelines violated the Sixth Amendment.
125 S. Ct. at 749-50.
The policy statements applicable to probation revocations
are advisory only and do not contravene the rule in Booker or the

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Sixth Amendment. See United States v. Hinson, 429 F.3d 114, 117
(5th Cir. 2005) (supervised release case); Pena, 125 F.3d at 287.
Although the sentence exceeded the guideline range, see U.S.S.G.
§ 7B1.4(a), it was within the statutory maximum of 20 years for
the offense of conviction. See Pena, 125 F.3d at 288. The
district court stated that it wished to provide Green with an
opportunity to participate in a comprehensive substance abuse
treatment program provided by the Federal Bureau of Prisons. See
id. at 287–88. The sentence was neither unreasonable nor plainly
unreasonable and was not imposed in violation of law. See id.;
see also Hinson, 429 F.3d at 119–20. The judgment is
AFFIRMED.

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