United States v. Boykin

* Pursuant to the 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Boykin admitted using cocaine, consuming alcohol, and failing to submit
to scheduled drug tests—all in violation of the terms of his supervised release.
2 Boykin pleaded guilty to possession with the intent to distribute less
than 50 kilograms of marijuana; on August 14, 2001, the district court sentenced
Boykin to a six-month term of imprisonment, followed by two years of supervised
release. No. 05-50704. Boykin pleaded guilty to aiding and abetting and
transportation of illegal aliens for commercial advantage and financial gain; on
April 25, 2002, the district court sentenced Boykin to an 18-month term of
United States Court of Appeals
Fifth Circuit
F I L E D
March 13, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50704
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
Alec McLeod Boykin,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:05-CR-71-ALL
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
During a revocation hearing on May 3, 2005, Alec McLeod Boykin
admitted violating conditions of his supervised release,1 relevant
to two separate convictions;2 the district court sentenced Boykin

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imprisonment, followed by three years of supervised release. No. 05-50706.
3 Boykin challenges his sentence related to case No. 05-50704. The
sentence imposed for violating the conditions of his supervised release in case
No. 05-50706 fell within the recommended range of five to eleven months because,
at the time of his original sentencing for the underlying conviction, Boykin had
a criminal history of category III. See U.S.S.G. § 7B1.4(a) (stating, in part:
“[t]he criminal history category is the category applicable at the time the
defendant originally was sentenced to a term of supervision”).
4 The Sentencing Commission recommends that defendants with Grade C
release violations and a criminal history category I receive sentences within a
three to nine-month range. U.S.S.G. § 7B1.4(a).
5 United States v. Mathena, 23 F.3d 87, 93 (5th Cir. 1994); United States
v. Hinson, 429 F.3d 114, 117 (5th Cir. 2005).
6 United States v. Olano, 507, U.S. 725, 731-37 (1993).
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to consecutive eleven-month terms of imprisonment. Boykin asserts
error in the calculation of only one of the eleven-month
sentences.3 He contends and the record shows that he had a
criminal history category I at the time of his first conviction,
resulting in a recommended term of imprisonment up to nine months.4
Although this term is advisory,5 Boykin argues that the district
court misapplied the guidelines on which it intended to rely, as
the sole benchmark for its sentence, by applying a criminal history
category III to his first conviction.
As Boykin makes this argument for the first time on appeal, we
review for plain error. Under the plain error standard, Boykin
must show that (1) there is an error, (2) that is clear or obvious,
and (3) that affects his substantial rights.6 After the defendant
has established these factors, the decision to correct the
forfeited error rests within our sound discretion, which we will
not exercise unless the error seriously affects the fairness,

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7 Id. at 736.
8
Prior to Booker, this Court held that ‘because there are no
applicable guidelines for sentencing after revocation of supervised
release, this court will uphold a sentence unless it is in violation
of the law or plainly unreasonable,’ which was consistent with the
provisions of section 3742(a) and (e) that applied to sentences ‘for
which there is no sentencing guideline.’ In Booker, the Supreme
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integrity, or public reputation of the judicial proceedings.7
In rendering its sentence, the district court stated, “The
court has reviewed the policy statements contained in Chapter 7 of
the Guidelines and finds they do adequately address the Defendant’s
repeated violation of the conditions of release.” Moreover, the
district court said, “The statutory range is 24 months on each of
those. The guideline range on each of those is 5 to 11 months on
each of those cases.” Thus, Boykin argues that the district court
sentenced him to a greater term of imprisonment than it had
intended since the sentence exceeds that recommended by the
Guidelines if the correct criminal history category had been
applied to his first conviction. Boykin has demonstrated obvious
error. However, he fails to show that the district court would
have sentenced him to a lesser term of imprisonment had the correct
criminal history category been applied; the record is devoid of any
such indication. Therefore, Boykin has not satisfied his burden,
failing to demonstrate that the two-month discrepancy in the
advisory ranges affected his substantial rights. Moreover, the
consecutive eleven-month sentences are neither unreasonable nor
plainly unreasonable.8 We have held that revocation sentences are

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Court excised subsection 3742(e) and directed appellate courts to
‘review for unreasonableness.’ We need not decide today whether the
‘plainly unreasonable’ standard in subsection 3742(a) continues to
apply to sentences imposed upon revocation of supervised release or
whether Booker's ‘unreasonableness’ standard governs. Nor is it
necessary to decide if there is a difference between the two
standards. [The defendant’s] sentence passes muster under either and
was not imposed in violation of law.
Hinson, 429 F.3d at 120.
9 United States v. Esquivel, 98 Fed. Appx. 995, 996 (5th Cir. 2004) (even
if court miscalculated the grade of violation, a 36-month revocation sentence was
not plainly unreasonable where the sentence was within the statutory maximum)
(unpublished); United States v. Gonzalez, 2006 U.S. App. LEXIS 2854 (5th Cir.
2006) (unpublished); United States v. Green, 2006 U.S. App. LEXIS 464 (5th Cir.
2006) (unpublished).
10 18 U.S.C. § 3583(e)(3) (“[A] defendant whose term is revoked under this
paragraph may not be required to serve on any such revocation...more than 2 years
in prison if such offense is a class C or D felony....”).
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not unreasonable, particularly, where they do not exceed the
statutory maximum.9 Neither of the district court’s sentences
exceed the two-year statutory maximum for the violations.10
AFFIRMED.

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