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United States v. Paige, 04-20543 (2005)

Court: Court of Appeals for the Fifth Circuit Number: 04-20543 Visitors: 38
Filed: May 25, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 25, 2005 Charles R. Fulbruge III Clerk No. 04-20543 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TIMOTHY NEIL PAIGE, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. 4:03-CR-458-1 - Before GARZA, DeMOSS, and CLEMENT, Circuit Judges. PER CURIAM:* Timothy Neil Paige appeals his guilty-plea conv
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                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 25, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-20543
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TIMOTHY NEIL PAIGE,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:03-CR-458-1
                      --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Timothy Neil Paige appeals his guilty-plea conviction

and sentence for two counts of bank robbery, in violation of

18 U.S.C. § 2113(a).   Although Paige’s guideline imprisonment

range under the Sentencing Guidelines was 92 to 115 months,

the district court departed upward to a prison sentence of 148

months on the ground that Paige’s criminal-history category

underrepresented the seriousness of his past criminal conduct.

     For the first time on appeal, Paige argues that the district

court erred by failing to notify him prior to sentencing that it



     *
       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. 04-20543
                                -2-

intended to impose an upward departure.     He is wrong, because his

Presentence Report (“PSR”) notified him that it was appropriate

to consider an upward departure on the ground the district court

ultimately cited.   See FED. R. CRIM. P. 32(h); United States v.

Andrews, 
390 F.3d 840
, 845 (5th Cir. 2004).     Paige has not shown

error, plain or otherwise, as to this claim.     United States v.

Olano, 
507 U.S. 725
, 735-36 (1993).

     For the first time on appeal, Paige contends that the

district court erred at rearraignment by failing to notify him

that his federal prison term could run consecutively to a state

term that had already been imposed.   He maintains that this

rendered his guilty plea involuntary.     Paige is incorrect,

because we have held that a district court is not required to

inform a defendant that his prison terms may run consecutively.

See United States v. Hernandez, 
234 F.3d 252
, 256 (5th Cir.

2000).   No error, plain or otherwise, is apparent.    United States

v. Vonn, 
535 U.S. 55
, 59 (2002).

     Paige argues for the first time on appeal that the district

court failed to admonish him at sentencing in several respects.

He maintains that the court failed to:     state on the record the

reasons for the upward departure; rule on his PSR objections;

state that it had adopted the PSR and its addendum; inquire

whether he and his attorney had read and discussed his PSR; and

allow allocution.   All of these contentions are reviewable for

plain error only.   See United States v. Esparza-Gonzalez, 
268 F.3d 272
, 274 (5th Cir. 2001) (citing 
Olano, 507 U.S. at 732-34
).

Paige has not shown plain error with respect to the court’s
                            No. 04-20543
                                 -3-

failure to state in open court the reasons for its upward

departure, because those reasons were plainly stated in writing

after sentencing.    See United States v. Gore, 
298 F.3d 322
, 325

(5th Cir. 2002).    Similarly, although the court did not formally

rule on Paige’s PSR objections at sentencing, it did do so in

writing afterward.   The court did not comply with FED. R. CRIM. P.

32(i)(1)(A)’s requirement that it verify that the defendant and

his attorney have read and discussed the PSR, but Paige has not

shown that he was prejudiced by such noncompliance, thus he has

not shown plain error.    See 
Esparza-Gonzalez, 268 F.3d at 274
.

Finally, Paige’s contention that the district court failed to

allow allocution is contradicted by the record, which shows that

the court encouraged him to speak and that he did so.

     The conviction and sentence are AFFIRMED.

Source:  CourtListener

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