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United States v. Myers, 98-20939 (1999)

Court: Court of Appeals for the Fifth Circuit Number: 98-20939 Visitors: 11
Filed: Sep. 21, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-20939 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RANDALL LEROY MYERS, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-95-CR-98-ALL - - - - - - - - - - September 17, 1999 Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Randall Leroy Myers appeals the district court’s order revoking his term of super
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-20939
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

RANDALL LEROY MYERS,

                                         Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-95-CR-98-ALL
                       - - - - - - - - - -

                        September 17, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Randall Leroy Myers appeals the district court’s order

revoking his term of supervised release and imposing a 24-month

prison sentence.   Myers, who was convicted of three counts of

interstate transmission of threatening communications in 1995,

was charged with violating the conditions of his supervised

release in 1998 by making additional threatening communications

and by failing to attend mental-health counseling sessions as

directed by his probation officer.


     *
        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that this opinion should not be published and is not precedent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.
                            No. 98-20939
                                 -2-

     Myers contends that the district court erred in failing to

hold a hearing on his mental competency to proceed with the

revocation proceeding and in determining that he was mentally

competent.    The court did not err in failing to hold a competency

hearing before proceeding with the revocation hearing because

Myers failed at that time to establish “reasonable cause to

believe” that he was “suffering from a mental disease or defect

rendering him mentally incompetent to the extent that he [was]

unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense.”

See 18 U.S.C. § 4241(a).    The district court’s determination at

the conclusion of the revocation hearing that Myers was competent

was not “clearly arbitrary and unwarranted.”    See United States

v. Doke, 
171 F.3d 240
, 247 (5th Cir. 1999), petition for cert.

filed (July 22, 1999, No. 99-5486).

     Myers argues that the district court erred in revoking his

supervised release because there was not sufficient evidence to

support such revocation.    The evidence overwhelmingly established

that Myers had violated the supervised-release condition

requiring him to attend regular mental-health counseling

sessions.    The district court may have improperly relied on

hearsay evidence in concluding that Myers had made additional

threatening communications.    However, because Myers did not

object to the admission of such evidence, the “plain error”

standard applies, and Myers has not shown that the district

court’s conclusion about this evidence violated his substantial

rights.   See United States v. Alaniz-Alaniz, 
38 F.3d 788
, 791-92
                            No. 98-20939
                                 -3-

(5th Cir. 1994); United States v. Castillo, 
179 F.3d 321
, 326

(5th Cir. 1999).   Myers has also not shown plain error as to his

claims that the district court violated his Confrontation Clause

rights by relying on hearsay, written statements and by failing

to issue written findings regarding the evidence supporting the

revocation of his supervised release.      See United States v.

McCormick, 
54 F.3d 214
, 220 (5th Cir. 1995).

     Myers raises several challenges to his sentence, all of

which are set forth for the first time on appeal.     He has not

shown that the district court abused its discretion in ordering

the revocation of his supervised release.     The district court did

not commit plain error in failing to consider suggested guideline

imprisonment ranges in U.S.S.G. § 7B1.4(a), p.s., because the

court was not bound by such ranges.     See United States v.

Giddings, 
37 F.3d 1091
, 1093 (5th Cir. 1993).     Similarly, the

court did not commit plain error by failing to explicitly

consider the factors listed in 18 U.S.C. § 3553(a) before

imposing sentence, because such consideration was implicit in the

reasons stated by the court.   See United States v. Teran, 
98 F.3d 831
, 836 (5th Cir. 1996).   Finally, the 24-month prison term was

not “plainly unreasonable,” because the sentence was based on

Myers’ multiple violations of the conditions of supervised

release and on Myers’ need for “medical care or other

correctional treatment in the most effective manner.”      See United

States v. Pena, 
125 F.3d 285
, 288 (5th Cir. 1997), cert. denied,

118 S. Ct. 1527
(1998); 18 U.S.C. § 3553(a)(2)(D).

     AFFIRMED.

Source:  CourtListener

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