REVISED MAY 6, 2010

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit

                                                                   FILED
                                 No. 09-10731                     April 2, 2010

                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA

                                           Plaintiff - Appellee
v.

TONY EUGENE DAVIS

                                           Defendant - Appellant



                 Appeal from the United States District Court
                      for the Northern District of Texas


Before KING, JOLLY, and STEWART, Circuit Judges.
KING, Circuit Judge:
      Defendant–appellant Tony Eugene Davis appeals the sentence of 24
months of imprisonment and two years of supervised release imposed following
the revocation of his supervised release. Davis contends that remand for
resentencing is warranted because there is a reasonable probability that, but for
the district court’s consideration of an incorrect advisory sentencing range, he
would have received a lesser sentence. On plain error review, we affirm.




                             I. BACKGROUND
                                     No. 09-10731

      On January 21, 2009, the vehicle in which Davis was traveling as a
passenger was stopped for a traffic violation in Walker County, Texas. Davis,
a convicted armed bank robber,1 was five months into a five-year term of
supervised release.      Noticing that the vehicle’s three occupants appeared
nervous and were providing inconsistent stories, the officer who initiated the
stop obtained Davis’s permission to search the vehicle, which was registered in
Davis’s name. The search revealed a loaded model Cf-200, Hi-Point .380 caliber
pistol in a briefcase on the rear passenger seat. Davis admitted that the
briefcase belonged to him. Also in the vehicle were several notes on colored
paper that read:
      This is a robbery. I want all of your big bills. No ink spots. No
      transmitters. Please hurry. I will shoot you. Have a nice day. (
These notes were found throughout the car, including one in a bank bag, another
in the glove compartment, and yet another in Davis’s wallet. Davis was arrested
for being a felon in possession of a firearm, a third-degree felony under Texas
law, see TEX. PENAL CODE ANN. § 46.04 (Vernon 2003), and was later indicted in
Texas state court.
      The district court held a hearing on July 15, 2009, to determine whether
Davis’s supervised release should be revoked. Davis’s probation officer testified
that Davis did not have permission to be in Texas on the day of the traffic
stop—Davis had arranged to live in Arkansas upon release from prison and was
required to inform his probation officer before leaving the state, which he had
not done.     The probation officer also testified that the terms of Davis’s
supervision prohibited him from committing any new federal, state, or local
offenses and from possessing a firearm. The district court found, after hearing
this testimony, that Davis had violated the conditions of his supervised release.


      1
        Davis’s conviction for armed bank robbery was under 18 U.S.C. § 2113(a) and (d), a
Class B felony. See 18 U.S.C. § 3581(b)(2).

                                            2
                                       No. 09-10731

       A Supervised Release Violation Report prepared by the probation office
indicated that Davis had a criminal history category of II and had committed a
Grade A violation of the conditions of supervised release. Under the advisory
policy statements (the “policy statements”) in Chapter 7 of the United States
Sentencing Guidelines (the “Guidelines”), these factors yielded an advisory range
of imprisonment of 15 to 21 months.                     U.S. SENTENCING GUIDELINES
MANUAL § 7B1.4(a) (2009) (“U.S.S.G.”). The statutory maximum punishment for
Davis’s violation was three years of imprisonment plus two years of supervised
release. See 18 U.S.C. § 3583(e)(3), (h).2 At the revocation hearing, Davis’s
counsel represented that the 15 to 21 month advisory range was correct and
requested that Davis receive a sentence within that range. After hearing Davis’s
allocution, the district court imposed 24 months of imprisonment to be followed
by two years of supervised release. The district court commented to Davis:
       You weren’t on supervised release for five months before you got
       rearrested. . . . You didn’t give [reintegration] a chance. Within five
       months you were already out of the district, and then you are
       carrying a gun and have this note that looks like you are doing some
       more armed robberies. And I don’t need to hear any argument from
       you. I have heard plenty from you.
       The parties now agree that the 15 to 21 month advisory range was
incorrect. Davis’s violation was in fact a Grade B violation under the policy
statements because the firearm found in Davis’s briefcase, a pistol, is not the
type of firearm that would support a more serious Grade A violation.3 The


       2
         Because Davis’s conviction was for a Class B felony, the district court could impose a
prison term of up to three years upon revocation of supervised release. 18 U.S.C. § 3583(e)(3).
The statute also allows the district court to impose additional supervised release following
revocation in the amount of “the original term of supervised release, less any term of
imprisonment that was imposed upon revocation of supervised release.” 

Because Davis’s original term of supervised release was five years, his maximum term of
supervised release, if the maximum term of imprisonment were imposed, would be two years.
       3
       A Grade A violation includes “conduct constituting (A) a federal, state, or local offense
punishable by a term of imprisonment exceeding one year that . . . (iii) involves possession of

                                               3
                                        No. 09-10731

correct advisory range was therefore only 6 to 12 months. U.S.S.G. § 7B1.4(a).
Davis contends that the district court’s consideration of an incorrect advisory
range provides a basis to vacate his sentence and order resentencing. Davis
concedes that because he did not raise this objection in the district court, plain
error review applies.
                             II. THE LEGAL STANDARD
       A district court may impose any sentence upon revocation of supervised
release that falls within the statutory maximum term allowed for the revocation
sentence, but must consider the factors enumerated in 18 U.S.C. § 3553(a) and
the policy statements before doing so. 18 U.S.C. § 3583(e); United States v.
McKinney, 

, 427 (5th Cir. 2008).4 Had Davis properly preserved his
objection to the 15 to 21 month advisory range, we would review to determine
whether the sentence imposed was unreasonable or “plainly unreasonable.” See
United States v. Jones, 

, 792 (5th Cir. 2007).5 Because Davis did not


a firearm or destructive device of a type described in 26 U.S.C. § 5845(a).”
U.S.S.G. § 7B1.1(a)(1)(A)(iii). Section 5845(a) includes shotguns, rifles, and machine guns, but
specifically excludes “pistol[s] . . . having a rifled bore.” 26 U.S.C. § 5845(a), (e).
       4
           We explained the significance of the policy statements in McKinney:

       There are no applicable guidelines for sentencing after revocation of supervised
       release; instead, the sentencing guidelines include policy statements concerning
       the revocation of supervised release. Section 7B1.4(a) [of the policy statements]
       provides advisory imprisonment ranges for defendants whose terms of
       supervised release have been revoked. The sentencing ranges are based on both
       the defendant’s criminal history and the severity of the defendant’s supervised
       release 

(internal citations omitted).
       5
        Before United States v. Booker, 

(2005), this court would uphold sentences
imposed upon revocation of supervised release unless “in violation of law or plainly
unreasonable.” United States v. Stiefel, 

, 258 (5th Cir. 2000). This court has not
yet decided, in the wake of Booker, whether this standard remains appropriate or whether
Booker’s standard of review for initial sentences, “unreasonableness,” applies with equal force
to review of sentences imposed upon revocation of supervised release. See United States v.

; United States v. Hinson, 

, 120 (5th Cir. 2005). Because

                                                4
                                      No. 09-10731

object to the 15 to 21 month advisory range in the district court, however, we
review under a more deferential standard for plain error. United States v. Davis,

, 284 (5th Cir. 2007).
       To establish plain error, an appellant must show a forfeited error that is
clear or obvious and that affected his substantial rights. Puckett v. United
States, --- U.S. ---, 

, 1429 (2009). Ordinarily, an error affects
substantial rights only if it “‘affected the outcome of the district court
proceedings.’” 

States v. Olano, 

, 734 (1993)); see
also 

. If the appellant makes this showing, “the court of
appeals has the discretion to remedy the error—discretion which ought to be
exercised only if the error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” 

(quoting 

).
       In the sentencing context, we have held that an appellant can show an
impact on substantial rights—and therefore a basis for reversal on plain error
review—where the appellant can show a reasonable probability that, but for the
district court’s error, the appellant would have received a lower sentence.
United States v. Garcia–Quintanilla, 

, 303–04 (5th Cir. 2009). We
have specifically applied this rule where the district court considered an
incorrect advisory range under the Guidelines for an initial sentence, United
States v. John, 

, 284–85 (5th Cir. 2010), and in a number of
unpublished cases have done the same where, as here, the district court
considered an incorrect advisory range under the policy statements for a
sentence imposed upon revocation of supervised release. See United States v.
Jimenez, No. 08-11175, 

, at *1 (5th Cir. Feb. 8, 2010) (per



this case involves plain error, which imposes a more deferential standard of review, we need
not resolve this issue.

                                             5
                                       No. 09-10731

curiam); United States v. Arkadie, 344 F. App’x 966, 967 (5th Cir. 2009) (per
curiam); United States v. Soliz, 344 F. App’x 900, 902 (5th Cir. 2009) (per
curiam). This is consistent with the rule in other circuits. See, e.g., United
States v. Miller, 

, 916 (8th Cir. 2009) (concluding, in the revocation
context, that “an error [i]s prejudicial only if there is a reasonable probability
that the defendant would have received a lighter sentence but for the error”).6
As the appellant, Davis bears the burden of establishing reasonable probability.

.
                                    III. ANALYSIS
       The parties do not dispute that the error in the advisory range that the
district court considered was clear and obvious. The issues are whether that
error affected Davis’s substantial rights under the “reasonable probability” test,
and if so, whether the error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings,” 

(internal
quotation marks omitted), such that we should exercise our discretion to remand
for resentencing.      Davis contends that there is a reasonable probability that,
but for the district court’s consideration of the incorrect range, his sentence
would have been lower. He argues that a reasonable probability can be inferred
because the district court considered the higher, incorrect range in weighing the



       6
         Pre-Booker, our standard for evaluating an error’s effect on substantial rights was
whether, “if the case were remanded, the trial judge could reinstate the same sentence.” United
States v. Ravitch, 

, 869 (5th Cir. 1997). Some of our cases have questioned
whether Ravitch might continue to apply post-Booker. See, e.g., United States v. Price, 

, 289 n.28 (5th Cir. 2008). Although we do not appear to have definitively determined
since Price which standard applies, more recent cases have embraced the “reasonable
probability” standard and have not referenced Ravitch. See, e.g., 

–85;
United States v. Jones, 

, 277 (5th Cir. 2010). We need not decide the present
status of Ravitch here because remand is unavailable under either test. The parties do not
dispute that the district court could reimpose the 24 month sentence on remand and we
conclude that even if a “reasonable probability” were shown that Davis’s sentence would have
been lower, the error in this case is not the type that we should exercise our discretion to
correct.

                                              6
                                         No. 09-10731

§ 3553(a) factors and reaching its sentence determination; because there is no
overlap between the correct 6 to 12 month advisory range and incorrect 15 to 21
month range; and because there is a significant gap between the correct range
and the 24 month sentence actually imposed.7 He also contends that the error
in this case seriously affects the fairness or integrity of the proceedings, and
therefore is of the type that we should exercise our discretion to remand. The
Government, pointing out that the district court imposed a sentence above the
high end even of the incorrect range and commented on the severity of Davis’s
offense,8 counters that Davis has not met his burden of showing a reasonable
probability that his sentence would have been lower absent the district court’s
consideration of the incorrect range, and that even if Davis could meet this
burden, this is not the type of circumstance in which remand would be
appropriate.
A.     Whether Davis Has Shown a “Reasonable Probability”
       We are not convinced that Davis has met his burden of establishing a
reasonable probability that the district court’s consideration of an incorrect
advisory range affected his sentence, as is required to satisfy the “substantial
effect” prong of the plain error test. The record amply demonstrates that in
determining Davis’s post-revocation sentence, the district court placed great
weight on the seriousness of the circumstances surrounding Davis’s violations


       7
          Davis raised the arguments as to overlap and gap for the first time in his reply brief.
We note that although we need not consider these arguments because they are raised for the
first time in his reply brief, we have discretion to do so. See United States v. Aguirre–Villa, 

, 683 n.2 (5th Cir. 2006) (“[T]his Court will not ordinarily consider arguments raised
for the first time in a reply brief.”); Cousin v. Trans Union Corp., 

, 373 n.22 (5th
Cir. 2001) (noting that although issues not raised in initial brief are normally waived, we have
discretion to decide the issue). We have decided to do so here. We note that the Government
had the opportunity to address these issues on the merits at oral argument and has not argued
that we should disregard these issues for being raised for the first time in a reply brief.
       8
        Davis does not challenge the adequacy of the district court’s reasons for varying
upward from the incorrect advisory range.

                                                7
                                        No. 09-10731

of the conditions of his supervised release and concluded that the violations
merited a significant punishment. The district court noted that Davis was only
five months into a five-year sentence of supervised release; was outside the state
in which he was required to remain; was in possession of a firearm; and was
carrying a bank bag and printed notes that strongly suggested that he intended
to resume the same activities for which he initially had been convicted and
imprisoned. Commenting on the seriousness of the violations, the district court
imposed a 24 month sentence, higher even than the top end of the incorrect
advisory range. The court, in short, had ample independent bases for imposing
the sentence that it did, and Davis has cited no statements in the record to
indicate that the court—which was required only to consider the advisory range
indicated by the policy statements and was permitted to impose any sentence
within the statutory maximum when determining the sentence—relied on the
incorrect advisory range in determining his sentence.9
       Davis contends that we may infer such reliance because the correct and
incorrect advisory ranges did not overlap and because there is a significant gap


       9
         We recognize, however, that although the district court was not obliged to follow the
advisory range or accord it any particular weight—and there is no specific evidence in the
record that it did so—advisory ranges often provide a “frame of reference” for a district court’s
sentencing decisions, United States v. Smith, 

, 707 (5th Cir. 2006), and such
ranges are one factor that a district court must consider in its § 3553(a) analysis, 18 U.S.C.
§ 3553(a). Although the district court’s actions in the present case make clear that it intended
to impose a sentence above the applicable advisory range, it is not equally clear that the court
would have imposed the same sentence had it considered the lower, correct advisory range.
Most notably, the district court never stated that it would have imposed the same sentence
regardless of the advisory range. Cf. United States v. Lemus-Gonzalez, 

, 94 (5th
Cir. 2009) (finding no reasonable probability where the district court considered both the
correct and incorrect ranges and stated that it would have imposed the same sentence in any
event); United States v. Bonilla, 

, 656 (5th Cir. 2008) (same); United States v.
Tzep–Mejia, 

, 526–27 (5th Cir. 2006) (same). We are hesitant, however, to
conclude that Davis can meet his burden simply by pointing to a clear error in the record and
asking us to infer, without more, that prejudice resulted. Cf. Jimenez, 

, at *2
(“By itself, the district court’s erroneous selection of the incorrect guideline range [wa]s not
enough to demonstrate that the ‘substantial rights’ prong of the plain error test [wa]s
satisfied.”); United States v. Gonzalez, 253 F. App’x 387, 388 (5th Cir. 2007) (same).

                                               8
                                        No. 09-10731

between the correct 6 to 12 month range and the 24 month sentence actually
imposed. Davis is correct that we have been willing, in previous cases, to infer
reliance where the sentence imposed fell within an incorrect advisory range that
did not overlap with the correct advisory range, see United States v. 

, or when even where there was some overlap, if the gap between the
correct advisory range and the sentence actually imposed was significant, see
United States v. Price, 

, 289 (5th Cir. 2008). But none of the cases
that Davis cites—and none of the “overlap” or “gap” cases that this court has
located—involved facts similar to those in the present case, in which the district
court imposed a sentence above even the top end of the incorrect advisory range
while commenting on the seriousness of the offense. To the contrary, in each of
the cases that Davis cites, the court imposed a sentence within the incorrect
range and made no comments to suggest that an above-range sentence would be
appropriate.10     In these cases, unlike Davis’s, the record created a strong

       10
          See United States v. 

(finding effect on substantial rights where
the 108 month sentence was imposed after the district court considered an incorrect advisory
range of 97 to 121 months rather than 70 to 87 months; specifically noting that “it is not
apparent from the record that John would have received an above-Guidelines sentence of 108
months if the district court had applied [the correct range]”); United States v. Munoz-Ortenza,

, 116 (5th Cir. 2009) (finding effect on substantial rights where the 41 month
sentence was imposed after the district court considered an incorrect advisory range of 41 to
51 months rather than 6 to 12 months); United States v. Gonzalez–Terrazas, 

, 298
(5th Cir. 2008) (finding effect on substantial rights where the 57 month sentence was imposed
after the district court considered an incorrect advisory range of 57 to 71 months rather than
24 to 30 months); United States v. Sanchez, 

, 466 (5th Cir. 2008) (finding effect
on substantial rights where the district court rendered a 60 month sentence rather than a 21
to 27 month sentence after failing to consider a proposed Guideline); United States v. 

(finding effect on substantial rights where 110 month sentence imposed after the
district court considered an incorrect advisory range of 110 to 120 months rather than 92 to
115 months; concluding that although the sentence rendered was within the correct range, “a
92-month sentence is substantially lower than a 110-month sentence”); United States v.
Dentler, 

, 314 (5th Cir. 2007) (finding effect on substantial rights where the 240
month sentence was imposed after the district court considered an incorrect advisory range of
210 to 262 months rather than 140 to 175 months); United States v. Villegas, 

,
364 (5th Cir. 2005) (per curiam) (finding effect on substantial rights where the 21 month
sentence was imposed after the court, applying then-mandatory Guidelines, considered an
incorrect range of 21 to 27 months rather than 10 to 16 months).

                                               9
                                   No. 09-10731

inference that the district court would in fact have imposed a lower sentence had
it considered the correct advisory range.
      The facts of Davis’s case are very similar to those that we addressed in
United States v. Jimenez, 

, at *2, which, though unpublished,
provides persuasive authority.       In Jimenez, the district court incorrectly
determined, in a revocation hearing, that the advisory range of imprisonment
under the policy statements was 12 to 18 months. 

The correct range
was 6 to 12 months. 

court ultimately imposed a sentence of 36
months, the statutory maximum for the violation at issue. 

We
concluded that “[b]y itself, the district court’s erroneous selection of the incorrect
guideline range [wa]s not enough to demonstrate that the ‘substantial rights’
prong of the plain error test [wa]s satisfied,” given that the district court had
“supported its upward departure from the guidelines by noting Jimenez’s
absconding from justice for 18 months and the drug treatment opportunity that
a 36 month term would afford.” 

We held that on these facts, “Jimenez
ha[d] failed to demonstrate that there [wa]s a ‘reasonable probability’ he would
have received a different term of imprisonment but for the guideline calculation
error.” 

in Jimenez, the district court imposed a sentence above even
the incorrect advisory range and supported this variance with reasons reflecting
the gravity of the offense. Considering the record and our case law, we are
skeptical that Davis has met his burden of showing a reasonable probability
that, but for the district court’s consideration of the incorrect advisory range, his
sentence would have been lower.
B.    Whether We Should Exercise Discretion to Remand
      We need not decide whether Davis has met his burden of showing
reasonable probability, however, because assuming without deciding that he has,
the error in this case is not the sort that we should, on plain error review,



                                         10
                                        No. 09-10731

exercise our discretion to remedy.11 Davis violated his supervised release only
five months into a five-year sentence. He was found outside the state in which
he was required to remain and was in possession of a firearm. He was carrying
a bank bag and printed notes that strongly suggested that he intended to resume
the same activities for which he initially had been convicted and imprisoned. On
this record, we decline to conclude that the district court’s imposition of a
sentence of 24 months of imprisonment and two years of supervised
release—particularly where a statutory maximum of 36 months of imprisonment
and two years of supervised release was an available punishment—“seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.”

(internal quotation marks omitted).
       Davis resists this conclusion, arguing that our precedent requires remand
whenever an appellant can show a reasonable probability that an unpreserved
error affected the sentence. But, as we observed in United States v. Ellis, 

, 378 (5th Cir. 2009), “the case law on this point is [not as] settled or as
categorical as language in some cases might make it seem.”12 In United States


       11
          Because we do not decide whether Davis has established a reasonable probability that
the district court’s consideration of an incorrect advisory range affected his substantial rights,
we do not reach the Government’s argument that we should accord less scrutiny to sentences
imposed after consideration of incorrect policy statement ranges than incorrect Guidelines
ranges. The Government contends that the policy statements, even post-Booker, do not (or
should not) carry as much weight as the Guidelines in sentencing determinations. Our circuit
has not addressed this question, nor has any other of which we are aware.
       12
           Davis points to our statement in United States v. Price, 

, 289 (5th Cir.
2008), that remand is required whenever the error “clearly affected [the] defendant’s sentence.”
(internal quotation marks omitted). But this language was drawn from United States v.
Villegas, 

, 365 (5th Cir. 2005) (per curiam), in which, under the then-mandatory
Guidelines, the district court imposed a 21 month sentence, which was within an incorrect
range of 21 to 27 months and significantly higher than the 10 to 16 month range. In Villegas,
the error in fact had a clear effect on the sentence—the Guidelines were mandatory, and the
district court made no statement on the record of any intention to depart from the Guidelines.
Here, by contrast, it is not clear that the error had any effect on the sentence; there is not
necessarily even a reasonable probability that it did so. We also note that Price and Ellis share
a writing judge—suggesting that we should resist the temptation to overread Price to

                                               11
                                      No. 09-10731

v. 

–88, we analyzed the relevant case law and concluded
that in this circuit, “whether a sentencing error seriously affects the fairness,
integrity, or public reputation of judicial proceedings is dependent upon the
degree of the error and the particular facts of the case.”                    The factual
circumstances under which we have granted remand have typically involved
disparities between the correct range and the sentence actually imposed that
were more severe than that presented here. More importantly, these cases have
involved facts that strongly suggest that the district court would have imposed
a lesser sentence had it considered the correct sentence. See, e.g., 

the 108 month sentence imposed was significantly above the 70 to 87
month advisory range and district court had shown no intention of imposing an
above-Guidelines sentence); 

(remanding because the gap
between the 110 month sentence imposed and the 92 month low-end of the
correct range was significant, and because the district court’s actions suggested
that it would in fact have sentenced at the low end of the correct range); United
States v. Gonzales, 

, 717 (5th Cir. 2007) (per curiam) (remanding
because the 76 month sentence imposed, which was within the incorrect 70 to
87 month advisory range, was substantially higher than the correct 30 to 37
month range).
       These cases also are not the only applicable precedent. We have held, in
at least one case that predates these cases, that we may decline to remand when
we are persuaded that the error, though plain, did not yield a result that
seriously affects the fairness or integrity of the proceedings. In United States v.
Jones, 

, 682 (5th Cir. 2007), we concluded that although the district
court had improperly based its 23 month upward departure on the appellant’s
lengthy arrest record, remand was not required, even if there was a reasonable



categorically require remand wherever a reasonable probability of a lesser sentence is found.

                                             12
                                  No. 09-10731

probability that the appellant’s sentence would have been less had the district
court not considered the arrest record, because “the error did not seriously affect
the fairness, integrity, or public reputation of judicial proceedings.” We noted
in particular that the sentence was supported by the facts that the appellant,
who pled guilty in these proceedings to possession of firearms by a felon, had
been found with a gun little more than a week after a state court felony
conviction and had a long, troubling history with guns. 

although some of our sentencing precedent “has been generous
with remand,” we have also recognized and acted on the proposition that “[n]ot
every error that increases a sentence need be corrected by a call upon plain error
doctrine.” 

. The plain error test requires both a showing
of effect on the appellant’s substantial rights and an effect on the fairness or
integrity of the proceedings before this court may exercise its discretion to
remedy the error. 

. If, as Davis asserts, every error
affecting substantial rights affects the fairness or integrity of the proceedings,
this would “effectively dispense[ ]” with the final prong of the plain error test,
and with it, “our discretion.” 

(Smith, J., dissenting); see
also 

(“[E]ven if an increase in a sentence be seen as
inevitably ‘substantial’ in one sense it does not inevitably affect the fairness,
integrity, or public reputation of judicial process and proceedings.”). To conclude
that the 24 month sentence imposed in this case “casts [serious] doubt upon the
fairness, integrity, or public reputation of the proceedings”—a sentence that is
well within the statutory maximum and was rendered after Davis was found
violating numerous terms of his supervised release and apparently planning a
return to his prior criminal activities—would “drain[ ] all content from the
doctrine of plain error.” 

. Accordingly, we decline to
exercise our discretion to remand for resentencing.
                              IV. CONCLUSION

                                        13
                             No. 09-10731

    For the foregoing reasons, we AFFIRM the sentence.
AFFIRMED.




                                  14