Filed: Jan. 04, 2007
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 January 4, 2007 Charles R. Fulbruge III Clerk No. 05-20924 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KEVIN L. NEAL, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-179-ALL - Before KING, HIGGINBOTHAM, and SMITH, Circuit Judges. PER CURIAM:* Defendant Kevin Neal appeals his sentence following revocatio
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 4, 2007 Charles R. Fulbruge III Clerk No. 05-20924 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KEVIN L. NEAL, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-179-ALL - Before KING, HIGGINBOTHAM, and SMITH, Circuit Judges. PER CURIAM:* Defendant Kevin Neal appeals his sentence following revocation..
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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 January 4, 2007
Charles R. Fulbruge III
Clerk
No. 05-20924
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN L. NEAL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-179-ALL
--------------------
Before KING, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:*
Defendant Kevin Neal appeals his sentence following revocation
of supervised release, arguing that the sentence is unreasonable
and that the court failed to let him allocute. We affirm.
I
In 1998, Neal pleaded guilty in Missouri federal court to
possession with intent to distribute cocaine. After applying
several sentencing reductions, the court gave him 80 months
imprisonment followed by eight years of supervised release. After
serving about five years, Neal began his release on April 1, 2003,
*
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opinion should not be published and is not precedent except under the limited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. 05-20924
-2-
reporting to the probation office in the Southern District of
Texas. On August 8 of that year, Houston police arrested Neal for
possession of marijuana.
When Neal reported to U.S. probation on September 4, the
probation officer confronted him about the arrest. Neal admitted
the arrest but maintained his innocence; probation did not
immediately move to revoke his release, and during the fall Neal
kept probation apprised of the case. But when Neal appeared in
Texas court on January 2, 2004 to plead guilty to the marijuana
charge, he left the courthouse and didn’t return.
Neal stopped reporting to probation after fleeing. In March
2004, probation prepared a violation report and requested that the
Missouri district court transfer jurisdiction, which it did on
March 22. On July 23, probation petitioned to revoke Neal’s
release, citing his arrest, his failure to report in person from
February through June 2004, and his failure to submit written
reports from January through May 2004. Neal eventually appeared in
state court on the marijuana charge, where he pleaded guilty and
was sentenced to four years imprisonment. In September 2005,
probation served Neal with the revocation warrant and the district
court held a revocation hearing.
At the hearing, Neal pleaded true to the allegations. During
his subsequent colloquy with the court, Neal attempted to explain
that although he had pleaded guilty to the state charges, the drugs
weren’t his and he had plead guilty to avoid the risk of trial.
No. 05-20924
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The court pressed Neal, asking whether he lied to the state judge
or was lying to the court. Neal conferred with counsel and
admitted “lying” to the state court.
The court then questioned Neal about fleeing. Neal claimed he
fled because his lawyer wanted him to take a ten-year sentence and
threatened to stop representing him if he failed to do so, hence he
fled to get a new lawyer. The court noted that he didn’t get a new
lawyer until six months later, after he was arrested on a fugitive
warrant; Neil claimed he was on his way back from Missouri to pay
the new lawyer when he was arrested.
After Neal clarified how long he had served in prison, and
that he had reported to probation from August through January and
had apprised probation of his marijuana case, the court
rhetorically asked if Neal made it about four months between
release and committing another crime. After Neal answered “yes,”
the court asked, “Anything else you want to tell me?” Neal
responded that he had no “problem with drugs, I mean as far as
doing drugs and reporting and stuff like that.” The court then
stated that Neal had “something to do with drugs,” citing his prior
conviction for possession with intent to distribute. The court
then asked, “Anything else?” After Neal explained that he had no
problem with reporting, the court stated that, “Well, then one of
the reasons that you didn’t have a problem is that he [apparently
the probation officer] told me what happened and I said, ‘Well,
just trust him a little bit more.’” After a few more brief
No. 05-20924
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exchanges, the court sentenced Neal to five years imprisonment and
adjourned the hearing.
Because Neal possessed drugs while on supervised release, the
district court had to revoke release.1 The Guidelines policy
advisory range, determined by probation, was eight to fourteen
months; the maximum sentence was five years.2 Neal challenges the
five-year sentence, arguing that the sentence was unreasonable and
that the court insufficiently explained its sentence; he also
argues that the district court committed reversible plain error in
denying him his right to allocute.
II
Neal asks that we review his post-Booker sentence for
reasonableness, even though he never objected on reasonableness
grounds below. The Government asks that we review for plain error
due to that lack of objection, alternatively that we review for
plain unreasonableness, the 18 U.S.C. § 3742(e) standard that, pre-
Booker, we used to review sentences on revocation.3 As we have
1
See 18 U.S.C. § 3583(g)(1).
2
See id. Neal was, independent of § 3583(g)(1), subject to a five-year
maximum because his prior offense was a Class A felony. See
id. § 3583(e)(3).
3
See, e.g., United States v. Gonzales, 250 F.3d 923, 929-30 (5th Cir.
2001); United States v. Teran,
98 F.3d 831, 836 (5th Cir. 1996); United States
v. Mathena,
23 F.3d 87, 93 n.13 (5th Cir. 1994).
No. 05-20924
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before,4 we don’t decide the standard of review because Neal’s
sentence is Booker reasonable.
As we noted in United States v. Weese and United States v.
Hunter, this court has “routinely upheld” sentences on revocation
above the advisory policy range but within the statutory maximum.5
The five-year sentence here was such a sentence. Moreover, the
record shows ample reason for the court’s sentence at the statutory
maximum - most notably, Neal used marijuana and absconded from the
law, and probably would’ve remained at large but for his arrest.6
Under these facts, the district court’s five-year sentence wasn’t
unreasonable.
Relatedly, Neal claims that the district court’s explanation
for its sentence was inadequate under our post-Booker precedent.7
To the contrary, the court focused on Neal’s conviction, after a
4
See United States v. Weese, 2006 WL 2590309 (5th Cir. Sept. 8, 2006)
(declining to decide between plain error and Booker reasonableness); United
States v. Hidalgo-Peralta, 166 Fed. App’x 762,
2006 WL 346315 (5th Cir. Feb.
15, 2006) (same); United States v. Hunter, 188 Fed. App’x 315,
2006 WL 1977472
(5th Cir. July 13, 2006) (same); United States v. Hinson,
429 F.3d 114, 117
(5th Cir. 2005) (declining to decide between plain unreasonableness and Booker
unreasonableness); cf. United States v. Boykin,
2006 WL 616031 (5th Cir. Mar.
13, 2006) (applying plain error to unobjected-to sentence on revocation, but
where objection was to calculation of Guidelines, not to reasonableness of
sentence).
5
See Weese, 2006 WL 2590309, *1; Hunter,
2006 WL 1977472, *4.
6
Neal claimed that he fled to get a better lawyer and that when
arrested he was returning to Texas after getting such a lawyer, but the court,
of course, was free to disbelieve this story, particularly given the six-month
delay between his flight and arrest. In any event, even if the story were
true, the court could’ve properly levied a five-year sentence after finding
Neal’s excuse insufficient.
7
See, e.g., United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.
2005) (describing the explanation requirement).
No. 05-20924
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guilty plea, for possession of marijuana, asking Neal about his
current, contradictory statement that the marijuana wasn’t his, and
the facts behind his flight, arrest, and failure to report.
Moreover, the sentencing transcript shows that the court knew of
the PSR and mentioned the “three violations” contained in the
petition for revocation; although it didn’t recite those violations
specifically, its detailed discussion of their facts makes lack of
recital irrelevant. Although the court never explicitly mentioned
18 U.S.C. § 3553(a) or 18 U.S.C. § 3583(e), it’s clear the court
considered their factors.8 Consequently, the court’s explanation
was sufficient for Booker reasonableness review.9
III
Neal also argues that he was denied the right of allocution.
Where, as here, the defendant didn’t object below, we review for
plain error.10
Federal Rule of Criminal Procedure 32 requires that the court
address the defendant personally and permit him to offer any
mitigating evidence. The rule envisions a “personal colloquy”
between the judge and defendant, leaving “no room for doubt that
8
See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (“A
checklist recitation of the § 3553(a) factors is neither necessary nor
sufficient for a sentence to be reasonable.”).
9
The parties dispute to what extent the court relied on its ostensible
belief that earlier it had urged the probation office to show Neal leniency,
Neal urging that the court could not have shown any leniency because it had no
jurisdiction. Whatever the case, the transcript reveals that any such
consideration played little or no role in the court’s sentence.
10
See United States v. Reyna, 358 F.3d 344, 347 (5th Cir. 2004).
No. 05-20924
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the defendant has been issued a personal invitation to speak;”11
“the court, the prosecutor, and the defendant must at the very
least interact in a manner that shows clearly and convincingly that
the defendant knew he had a right to speak on any subject of his
choosing prior to the imposition of sentence.”12
The district court allowed Neal to speak, asking him “Anything
else you want to tell me?” and “Anything else?”. Neal argues that
because those questions came after the court asked several
questions about Neal’s state drug charges and failure to report, he
believed the court was asking him to respond more fully to those
questions. There is support for this argument.13 Nonetheless, even
assuming error that affected Neal’s substantial rights, no
miscarriage of justice occurred. In United States v. Reyna,14 we
declined to adopt “a blanket rule that once prejudice is
found...[the denial of the right to allocute] invariably requires
correction.” Rather, to reverse we require the defendant to “show
some objective basis that would have moved the trial court to grant
a lower sentence; otherwise, it can hardly be said that a
miscarriage of justice has occurred.”15 Here, Neal asserts only
conclusionally he was not given an opportunity to discuss his
11
See United States v. Echegollen-Barrueta, 195 F.3d 786, 789 (5th Cir.
1999).
12
See id.
13
See Echegollen-Barrueta, 195 F.3d at 789.
14
358 F.3d at 344.
15
United States v. Magwood, 445 F.3d 826, 830 (5th Cir. 2006).
No. 05-20924
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“family, background, his conduct in prison, his activities during
his months of successful supervised release, or other areas.”
However, he fails to allege any specific facts which, given the
entirety of the transcript, particularly the court’s focus on
Neal’s flight and drug use while on release, likely would’ve
convinced the district court to levy a more lenient sentence.16 In
short, Neal has failed to show a “miscarriage of justice.”
AFFIRMED.
16
He also contends that he could have cleared up any misapprehension
the court had regarding whether it had acted in the case before jurisdiction
had been transferred to the Southern District of Texas, but he fails to state
how this would have affected the district court.
