United States v. Brown

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60507
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RODREGUS K. BROWN,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:09-CR-93-1

Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Rodregus K. Brown appeals the 24-month sentence imposed following
the revocation of his supervised release, which was in excess of the advisory
policy range set forth in U.S.S.G. § 7B1.4(a) of four to ten months. Brown
challenges the procedural and substantive reasonableness of that sentence.
When sentencing Brown, the district court indicated that it had reviewed
§ 7B1.4(a) and the appropriate § 3553(a) factors, particularly Brown’s history

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
February 6, 2020

Lyle W. Cayce
Clerk
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2
and characteristics and the court’s responsibility to adequately deter criminal
conduct. See § 3553(a)(1), (2)(B). The court noted that Brown had committed
a new felony while on supervised release, that he had been arrested on three
additional occasions during the term of supervision, and that he placed the
community at significant risk by leading law enforcement officers on a high-
speed chase in excess of 120 miles per hour.
Brown argues that the reasons given by the district court in support of
the chosen sentence were inadequate and, therefore, that the sentence is
procedurally unreasonable. This procedural argument, raised for the first time
on appeal, is reviewed for plain error. See Puckett v. United States, 556 U.S.
129, 135 (2009); United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013).
Brown has not shown that the alleged procedural error was clear or obvious or
that it affected his substantial rights. See United States v. Whitelaw, 580 F.3d
256, 262-63 (5th Cir. 2009). His procedural claim therefore does not survive
plain error review. See Puckett, 556 U.S. at 135.
Brown also challenges the substantive reasonableness of his revocation
sentence, arguing that the sentence represents a clear error of judgment in
balancing the 18 U.S.C. § 3553(a) sentencing factors. His objection in the
district court was sufficient to preserve review under the plainly unreasonable
standard. See Warren, 720 F.3d at 326. A preserved objection to a sentence’s
substantive reasonableness is reviewed for an abuse of discretion, examining
the totality of the circumstances. Id. at 332.
Brown’s revocation sentence, although in excess of the advisory policy
range, was within the statutory maximum term of imprisonment allowed for
the revocation sentence and is thus the type of sentence we routinely uphold.
See Warren, 720 F.3d at 328; Whitelaw, 580 F.3d at 265. Moreover, Brown has
failed to point specifically to a clear error by the district court in balancing the
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sentencing factors; his contention that a sentence within the advisory policy
range was sufficient to meet the sentencing goals of § 3553(a) is nothing more
than a disagreement with the district court’s choice of sentence, coupled with
a request that we reweigh the § 3553(a) factors, which we may not do. See Gall
v. United States, 552 U.S. 38, 51 (2007); United States v. Heard, 709 F.3d 413,
435 (5th Cir. 2013). He therefore has not shown that his sentence was an abuse
of discretion. See Warren, 720 F.3d at 332.
AFFIRMED.
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