U.S. v. McKinney

• Decision Date: 07 March 2008
• Docket Number: No. 07-50170.,07-50170.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond McKINNEY, also known as Eaven Scott, also known as Brandon Lee, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

520 F.3d 425

UNITED STATES of America, Plaintiff-Appellee, v. Raymond McKINNEY, also known as Eaven Scott, also known as Brandon Lee, Defendant-Appellant.

No. 07-50170.

United States Court of Appeals, Fifth Circuit.

March 7, 2008.

Joseph H. Gay, Jr., Asst. U.S. Atty., Michael Robert Hardy, San Antonio, TX, for U.S.

Henry Joseph Bemporad, Fed. Pub. Def., San Antonio, TX, for McKinney.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The defendant-appellant Raymond McKinney appeals his sentence of 24-months imprisonment imposed upon revocation of his supervised release. First, McKinney challenges the criminal history category that the district court used to calculate the advisory guideline range for his revocation sentence. See U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 7B1.4(a) (2007). Second, McKinney argues that his sentence is unreasonable. We AFFIRM.

I

McKinney was convicted of possession with intent to distribute less than 50 grams of cocaine base within 1,000 feet of a secondary school (count one) and possession with intent to distribute less than 50 grams of cocaine base (count two). The presentence report ("PSR") assigned McKinney a total offense level of 28 and a criminal history category of VI; his resulting guideline range of imprisonment was 140 to 175 months. At sentencing, the district court denied McKinney's objection to the calculation of his criminal history category and determined, consistent with the PSR's recommendation, that McKinney's criminal history category was VI. However, the district court concluded that McKinney was entitled to a downward departure pursuant to U.S.S.G. § 4A1.3 because McKinney's criminal history category of VI over-represented the seriousness of his criminal history. McKinney consequently was sentenced to 100 months of imprisonment and an eight-year term of supervised release. His sentence corresponded to a criminal history category of III.

McKinney appealed his conviction and sentence. This court remanded the case to the district court for dismissal of count one and re-sentencing on count two. On remand, the district court sentenced McKinney to 60 months of imprisonment and a three-year term of supervised release. His supervised release began in March 2005.

In April 2006, McKinney's probation officer petitioned the district court for an arrest warrant. The probation officer stated that McKinney had violated a condition of his supervised release: in January 2006, McKinney was arrested and charged with possession of a controlled substance (ecstasy); possession of marijuana; assault on a public servant; resisting arrest; and evading arrest.¹ The Government moved to revoke McKinney's supervised release. The Government specifically noted that McKinney had received a "lenient imprisonment sentence" at his initial sentencing, did not complete a court-recommended drug treatment program while imprisoned, and had escaped from the prerelease halfway house to which he was assigned. McKinney pleaded not true to the allegations.²

The district court conducted a hearing to determine McKinney's involvement in the events on which the revocation motion was based. The court concluded that there was sufficient cause to revoke McKinney's supervised release. The court noted that the most serious crime with which McKinney had been charged was a Grade B violation. See U.S.S.G. § 7B1.1. The court further found that McKinney had a criminal history category of VI; accordingly, his guideline range of imprisonment was 21 to 24 months.³ See U.S.S.G. § 7B1.4.

McKinney questioned the district court's proposed guideline range of imprisonment; McKinney asserted that he "was never sentenced in Category VI" because the original sentencing court's decision to depart downward pursuant to § 4A1.3 resulted in his criminal history category being altered to category III. McKinney further urged the court to "give all due consideration" to the prescriptions of "the Chapter 7 Guidelines," which "[have] given adequate consideration ... to criminal history[.]" The district court sentenced McKinney to 24 months of imprisonment and ordered his participation in a drug treatment program. McKinney appealed.

II

McKinney asserts that the district court erred in using criminal history category VI at his revocation sentencing. He argues that where, as here, the district court granted a departure from the applicable criminal history category for the reasons stated in U.S.S.G. § 4A1.3 at the original sentence, the criminal history category to be used upon revocation is the post-departure criminal history category. Because McKinney's post-departure criminal history category was III, he argues that the district court erred in using his pre-departure criminal history category of VI to determine the advisory guideline range. McKinney further alleges that the district court's resulting sentencing decision was unreasonable and asserts that the case should be remanded for re-sentencing within the appropriate guideline range.

If the district court finds by a preponderance of the evidence that a defendant has violated a condition of his supervised release, it has the discretion to revoke the previous sentence and impose a term of imprisonment. See 18 U.S.C. § 3583(e)(3); United States v. Arbizu, 431 F.3d 469, 470 (5th Cir.2005). The district court may impose any sentence that falls within the appropriate statutory maximum term of imprisonment allowed for the revocation sentence. See § 3583(e)(3). In so doing, the district court is directed to consider the factors enumerated in 18 U.S.C. § 3553(a), including the non-binding policy statements found in Chapter Seven of the Sentencing Guidelines Manual. § 3583(e); see United States v. Gonzalez, 250 F.3d 923, 929-30 (5th Cir.2001); United States v. Mathena, 23 F.3d 87, 90, 92 (5th Cir. 1994). This court reviews the district court's interpretation and application of the Guidelines de novo. See United States v. Villanueva, 408 F.3d 193, 202 (5th Cir. 2005); Mathena, 23 F.3d at 89.

Prior to Booker, this court would uphold a sentence imposed "after revocation of supervised release unless it [was] in violation of law or [was] plainly unreasonable." United States v. Stiefel, 207 F.3d 256, 259 (5th Cir.2000) (internal quotation marks omitted); see 18 U.S.C. § 3742(e)(1), (4). In Booker, however, the Supreme Court excised § 3742(e) and directed appellate courts to review for unreasonableness. United States v. Booker, 543 U.S. 220, 260-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); see also Gall v. United States, ___ U.S. ____, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007) ("[A]ppellate review of sentencing decisions is limited to determining whether they are `reasonable.'"). This court has declined to resolve which standard of review applies to revocation sentences after Booker; instead, this court has reviewed revocation cases under (a) both the "plainly unreasonable" and the Booker unreasonableness standards of review or (b) the more exacting Booker unreasonableness standard. See United States v. Hinson, 429 F.3d 114, 119-20 (5th Cir.2005). We again decline to resolve this issue because, as stated below, we conclude that McKinney's sentence was neither unreasonable nor plainly unreasonable.

As a final preliminary issue, the Government argues that we should review McKinney's objection to the district court's application of criminal history category VI for plain error because McKinney failed adequately to object on this basis below and thus did not preserve the issue. We disagree. McKinney's announcement to the district court that he was originally sentenced in criminal history category III and his request to the district court to give all due consideration to the Chapter 7 Guidelines was sufficient to preserve the issue for appellate review. Therefore, the plain error standard does not apply.

III

McKinney argues that the district court used the incorrect criminal history category to calculate the advisory guideline range at his revocation sentencing. There are no applicable guidelines for sentencing after revocation of supervised release; instead, the sentencing guidelines include policy statements concerning the revocation of supervised release. See U.S.S.G. Ch. 7, Pt. B, introductory comment. Section 7B1.4(a), p.s., provides advisory imprisonment ranges for defendants whose terms of supervised release have been revoked. The sentencing ranges are based on both the defendant's criminal history and the severity of the defendant's supervised release violation. See § 7B1.4(a); § 7B1.1, p.s.

The criminal history category under § 7B1.4(a) is defined as "the category applicable at the time the defendant was originally sentenced to a term of supervision." The question in this case is whether the criminal history category "applicable" at the time of the defendant's original sentence is the pre- or post-departure category, in a case where a district court originally departed from that criminal history category for the reasons stated in U.S.S.G. § 4A1.3 (Adequacy of Criminal History Category). Section § 7B1.4(a) does not elaborate on this issue. However, the commentary to § 7B1.4 is instructive.

The commentary's interpretation of the guidelines is generally authoritative. See United States v. Austin, 479 F.3d 363, 367 (5th Cir.2007); Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) ("[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline."). We apply ordinary rules of statutory construction when interpreting the commentary. Austin, 479 F.3d at 367-68.

Application Note 1 of the commentary to § 7B1.4 explains that the "criminal history category to be...