United States v. Yarbrough

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50424
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DOUGLAS HUBBARD YARBROUGH,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:09-CR-328-1

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:
*

Douglas Hubbard Yarbrough appeals the 36-month sentence of
imprisonment imposed following the revocation of his term of supervised
release. He contends that the above-guidelines sentence is procedurally and
substantively unreasonable.
Generally, we review revocation sentences under the plainly
unreasonable standard, examining first for procedural error and then for

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 27, 2020

Lyle W. Cayce
Clerk
Case: 19-50424 Document: 00515323238 Page: 1 Date Filed: 02/27/2020

No. 19-50424
2
substantive reasonableness. United States v. Warren, 720 F.3d 321, 326 (5th
Cir. 2013). However, where a district court was not put on notice of the
arguments presented on appeal pertaining to a revocation sentence, plain error
review applies. United States v. Kippers, 685 F.3d 491, 497 (5th Cir. 2012).
Under the plain error standard, Yarbrough must show (1) an error (2) that is
clear or obvious (3) and that affects his substantial rights. United States v.
Fuentes, 906 F.3d 322, 325 (5th Cir. 2018), cert. denied, 139 S. Ct. 1363 (2019).
“If he makes that showing, this court has the discretion to correct the error
only if it seriously affect[s] the fairness, integrity[,] or public reputation of
judicial proceedings.” Id. (internal quotation marks and citation omitted).
The instant record reflects that the district court considered the properly
calculated guidelines range, the statutory maximum sentence available, and
Yarbrough’s unwillingness to comply with the terms of his supervision. The
record reflects that it implicitly considered the 18 U.S.C. § 3553(a) factors when
it selected Yarbrough’s sentence. See Kippers, 685 F.3d at 499. The record of
the sentencing proceeding allows us to conduct a meaningful appellate review,
and there is no suggestion in the record that a more thorough explanation
would have resulted in a lower sentence. See United States v. Whitelaw, 580
F.3d 256, 262-64 (5th Cir. 2009). Moreover, nothing in the record suggests that
the district court considered an improper factor or would impose a lighter
sentence on remand. See id. at 264–65.
AFFIRMED.
Case: 19-50424 Document: 00515323238 Page: 2 Date Filed: 02/27/2020