Case: 10-30739 Document: 00511461218 Page: 1 Date Filed: 04/29/2011




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

                                                 FILED
                                                                            April 29, 2011
                                     No. 10-30739
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

HUEY ALLEN HOPKINS,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 6:05-CR-60023-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Huey Allen Hopkins appeals his 24-month sentence imposed following
revocation of his supervised release. He contends the district court failed to
consider the three-to-nine-month, advisory policy range under Sentencing
Guideline § 7B1.4, and failed to articulate reasons for deviating from that range.
       The Guidelines provide only policy statements regarding sentencing
following supervised-release revocation.            See U.S.S.G. Ch. 7.         Pre-Booker,
sentences imposed upon revocation of supervised release were upheld unless “in

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-30739 Document: 00511461218 Page: 2 Date Filed: 04/29/2011

                                   No. 10-30739

violation of the law or plainly unreasonable”. United States v. Jones, 

, 791 (5th Cir. 2007) (citation and internal quotation marks omitted).
Following Booker, in general, sentences are reviewed for reasonableness under
the abuse-of-discretion standard. United States v. Mondragon-Santiago, 

, 360 (5th Cir. 2009). Holding the pre-Booker more deferential standard
of review appropriate, however, for reviewing sentences imposed following
supervised-release revocation, in United States v. Miller, 

, 843 (5th
Cir. 2011), our court held recently that, post-Booker, the plainly-unreasonable
standard is still to be applied.
      Because, however, Hopkins failed to object in district court to the
procedural errors he now asserts, his contentions are reviewed only for plain
error. See United States v. Hernandez-Martinez, 

, 272-73 (5th Cir.
2007). To show reversible plain error, Hopkins must show a clear or obvious
error that affects his substantial rights. Puckett v. United States, 

, 1429 (2009). To show his substantial rights were affected, Hopkins must
show a reasonable probability that, but for an error in the district court’s
application of the advisory Guidelines, he would have received a lesser sentence.
See United States v. Blocker, 

, 416 (5th Cir.), cert. denied, 

(2010). If he makes that showing, our court has discretion to correct the
error, but will generally do so only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. 

.
      The probation officer’s “Dispositional Report” was provided to the district
judge presiding over Hopkins’ revocation hearing.          That report stated the
advisory policy range, as provided by Guideline § 7B1.4, was three to nine
months’ imprisonment.        Further, during that hearing, the district judge
conferred with the probation officer to discuss sentencing options. Accordingly,
Hopkins has not shown the district court failed to consider the advisory policy
range provided by Guideline § 7B1.4.



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                                   No. 10-30739

      Even if Hopkins could show the district court failed to consider that range,
he has not shown his substantial rights were affected. The sentencing transcript
reflects that the district court considered the parties’ positions and provided
sufficient reasons for the sentence imposed, such as:         Hopkins’ numerous
supervised-release violations; the danger Hopkins poses to the public due to his
excessive drinking and driving while intoxicated; and Hopkins’ need for
substance-abuse treatment and rehabilitation. See United States v. Whitelaw,

, 261-64 (5th Cir. 2009). The court determined that a sentence of
less than 24 months would not allow Hopkins to obtain the needed substance-
abuse treatment, noting Hopkins’ sentence was “the only sentence available . . .
that would fit the situation”. Accordingly, Hopkins has not shown a reasonable
probability that, but for the district court’s claimed error, he would have received
a lesser sentence. See 

.
      AFFIRMED.




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