Case: 09-60828     Document: 00511248060          Page: 1    Date Filed: 09/29/2010




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

                                                 FILED
                                                                        September 29, 2010
                                     No. 09-60828
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CHARLES STEVENS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 3:96-CR-94-4



Before GARWOOD, PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
        Charles Stevens pleaded guilty to possessing cocaine base with intent to
distribute and in 1997 was sentenced to 74 months of imprisonment, a five-year
term of supervised release, and a $4,000 fine (as well as a $100 special
assessment). His supervised release was revoked in May 2003, and he was
sentenced to serve six months in prison and to a new supervised release term of
51 months. That term of supervised release was revoked in October 2005, and



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-60828

Stevens was sentenced to serve six months in prison followed by 48 months of
supervised release.
      In 2009 the Government again moved to revoke Stevens’s supervised
release, alleging, inter alia, that Stevens had not fulfilled his obligation to pay
the fine imposed at the time of his conviction. On the first day of his revocation
hearing, Stevens testified that he had not paid his fine because he had child
support obligations and paid large sums of money to attorneys who had
represented him. After the probation officer conducted an investigation to verify
that testimony, on the district court’s order, Stevens admitted that he had lied
to the court about making payments to attorneys. He asserted that he lied
because he was anxious and under the influence of prescription medication for
mental illness. The district court observed that the guidelines range was three
to nine months but that the statutory maximum sentence imposable, giving
Stevens credit for imprisonment imposed on previous revocations, was 48
months. The district court revoked supervised release and sentenced Stevens
to serve 36 months in prison and a supervised release term of 12 months.
      Stevens maintains that his revocation sentence is both unreasonable and
plainly unreasonable.    First, he maintains that the district court failed to
consider his history and characteristics because it gave insufficient consideration
to his history of mental health issues and to his use of prescription medication
on the day he gave false testimony. Second, he maintains that punishing him
for conduct that could form the basis of a future prosecution for perjury was
unreasonable because of the potential for double punishment.            Third, he
contends that his sentence’s level of deviation above the advisory range was
itself enough to render the sentence unreasonable.
      Before United States v. Booker, 

(2005), an appellate court
reviewed a sentence imposed for an offense for which there was no applicable
Sentencing Guideline to determine whether it was plainly unreasonable or in
violation of law. 18 U.S.C. § 3742(e)(4); United State v. Mathena, 

, 89

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(5th Cir. 1994); see also Koon v. United States, 

, 96-97 (1996) (stating
that sentences imposed pursuant to § 3742 were to be reviewed for abuse of
discretion).   Booker directed appellate courts to review sentences for
reasonableness and to apply an abuse of discretion standard in doing so. Gall
v. United States, 

, 46, 51 (2007). It is unclear whether the validity
of a post-Booker revocation sentence turns on whether it is held to be reasonable
or to be plainly unreasonable. United States v. Davis, 

, 647 n.5 (5th
Cir. 2010). We need not decide which is the appropriate standard, however, as
Stevens’s sentence is neither unreasonable nor plainly unreasonable.
      The record does not support Stevens’s claim that he lied to the court
because he was impaired by mental illness or by medication. The district court
made it expressly clear that it did not believe Stevens’s excuses for his perjury,
and we will not disturb such a credibility determination See United States v.
Buenrostro, 

, 138 (5th Cir. 1989).
      Stevens cites no case, no statute, and no Guideline in support of his
double-punishment claim.       Merely asserting a claim without citing legal
authority in support is insufficient. Yohey v. Collins, 

, 224-25 (5th
Cir. 1993); F ED. R. A PP. P. 28(a)(9). In any event, even if appellant’s double-
punishment argument had been properly briefed, it would still be unsuccessful
in light of Witte v. United States, 

(1995). In that case, the
Supreme Court made clear that consideration of certain behavior for purposes
of sentencing enhancement does not count as “punishment” for the behavior, and
as a result there is no double-jeopardy prohibition against the behavior being
taken into account both as a justification for sentencing enhancement in one
proceeding and also as the basis of a separate charge in a later proceeding. 

Consequently, the district judge was not prohibited from taking into
account Stevens’s perjury to justify a longer sentence, simply because Stevens
could potentially be charged with perjury as a separate offense.



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      On revocation of supervised release, a district court may impose any
sentence that falls within the statutory maximum term, but must consider the
Guidelines’ policy statements, see U.S.S.G. Ch.7, Pt.B, and the factors
enumerated in § 3553(a) before it does so. 

. The district
court here clearly did so. Stevens does not dispute that his sentence was below
the statutory maximum of 48 months imposable on the revocation of his
supervised release. Instead, he contends that his sentence deviated too far above
the policy statements range. We reject that contention. As we have previously
observed, we have routinely affirmed revocation sentences above the advisory
policy range but within the statutory maximum. United States v. Whitelaw, 

, 265 (5th Cir. 2009). No abuse of discretion is shown here.
      AFFIRMED.




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