U.S. v. Whitelaw

Decision Date19 August 2009
Docket NumberNo. 08-50346.,08-50346.
Citation580 F.3d 256
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Alan WHITELAW, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

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

Karyl Krug (argued), Austin, TX, for Whitelaw.

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

Before DAVIS, OWEN and HAYNES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant Alan Whitelaw appeals his sentence imposed upon revocation of his term of supervised release on several grounds that he failed to bring to the attention of the sentencing court. Finding no plain error, we affirm.

I.

Alan Whitelaw was convicted of theft of money in an amount exceeding $200,000 in state court and was sentenced to 60 years of imprisonment. Whitelaw subsequently pleaded guilty to federal bank fraud charges in the Southern District of Texas. While the same type of fraudulent conduct was the basis for both of Whitelaw's convictions, the federal and state convictions involved different specific conduct, dates, and victims.

Although Whitelaw pleaded guilty to the federal charge without a written plea agreement, the Government made an oral agreement at rearraignment that it would recommend that Whitelaw's sentence run concurrently with his state court sentence. The district court accepted the agreement as a plea agreement under FED.R.CRIM.P. 11(c)(1)(C), ruling that Whitelaw would be allowed to withdraw his guilty plea if it did not order that his sentence run concurrently with his state court sentence. The district court sentenced Whitelaw to 46 months of imprisonment, the sentence to run concurrently with his state court sentence, and five years of supervised release.

Whitelaw served only five years on his state court sentence, was released from prison, and began serving his term of supervised release as required under his federal sentence on June 10, 2004. Jurisdiction over Whitelaw's supervised release was transferred to the Western District of Texas.

In October 2007, Whitelaw's probation officer filed a petition for an arrest warrant to arrest Whitelaw for violating the conditions of his supervised release. After the district court issued the warrant and Whitelaw was arrested, the Government filed a motion to revoke Whitelaw's supervised release and an amended motion to revoke Whitelaw's supervised release ("MTR"). In the amended MTR, the Government alleged that Whitelaw had violated the conditions of his supervised release by: (1) committing the felony offense of theft of copper wire valued in excess of $1,000 or possession of stolen copper wire valued in excess of $1,000; (2) making false statements to his probation officer by denying that he had committed the offense; (3) obstructing justice by submitting to his probation officer false or forged documents purporting to relate to his acquisition of copper wire; (4) not timely reporting to his probation officer his arrests on June 17, 2007, and October 12, 2007; and (5) failing to timely report to his probation officer changes in his employment.

Whitelaw pleaded not true to the revocation charges. Following an evidentiary hearing, the district court declined to rule on the charge that Whitelaw did not timely report his June 17, 2007 arrest to his probation officer, but found that the remaining charges were true, and revoked Whitelaw's supervised release. The district court determined that Whitelaw's criminal history category was I and that his highest grade of supervised release violation was B, making his statutory maximum sentence 36 months of imprisonment and his guidelines sentence range 4-10 months of imprisonment. Whitelaw requested a sentence at the low end of the guidelines range. The district court sentenced Whitelaw to 36 months of imprisonment, and ordered that sentence run consecutively to any other state or federal sentence. Whitelaw filed a timely notice of appeal.

Following the revocation of his supervised release, Whitelaw filed a pro se motion that included a claim that he should be allowed to withdraw his guilty plea because his sentence upon the revocation of supervised release was not ordered to run concurrently with any state court sentence he received. The district court struck the motion because Whitelaw was represented by counsel and, therefore, not entitled to make pro se filings. In the alternative, the district court denied the motion on its merits.

II.

Whitelaw did not raise any of the specific claims of procedural error that he argues in this appeal when he was before the district court for sentencing. Accordingly, as Whitelaw concedes, this court reviews those claims for plain error only. See United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 325, 169 L.Ed.2d 229 (2007). Whitelaw also acknowledges that his argument that his challenge to the sufficiency of the district court's explanation of the reasons for the sentence imposed does not need to be preserved is foreclosed. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 625, 172 L.Ed.2d 617 (2008).

Whitelaw challenged the district court's ruling that his sentence would run consecutively to any other sentence only in the pro se motion he filed following his revocation hearing. That motion, however, was stricken by the district court because Whitelaw was represented by counsel. Accordingly, Whitelaw did not properly raise this claim of specific legal error below, and this court reviews it for plain error only. See Hernandez-Martinez, 485 F.3d at 272-73.

Whitelaw also did not object to the substantive reasonableness of the sentence below. Whitelaw's contest of the revocation charges and request for a sentence at the low end of the guidelines range are insufficient to preserve the substantive reasonableness of the sentence for review. See United States v. Peltier, 505 F.3d 389, 390-92 (5th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2959, 171 L.Ed.2d 892 (2008). Whitelaw maintains that Peltier conflicts with Hernandez-Martinez, and that Hernandez-Martinez controls under the rule of orderliness because it is the earlier opinion. This argument is without merit. In Hernandez-Martinez, 485 F.3d at 272 n. 1, Hernandez-Martinez raised a claim of specific legal error rather than an objection to the substantive reasonableness of his sentence. This court made it clear that it was not adopting the holding from other circuits that an objection is not necessary to preserve a substantive reasonableness challenge to a sentence. See id. Accordingly, when this court held that a defendant must object to a sentence as unreasonable to preserve a substantive reasonableness challenge in Peltier, 505 F.3d at 391-92, the holding did not conflict with Hernandez-Martinez. Therefore, Peltier is the controlling precedent, and Whitelaw's substantive reasonableness challenge is subject to plain-error review.

Because all of the issues raised by Whitelaw are subject to plain-error review, we need not determine whether to apply the reasonableness standard of review or the plainly unreasonable standard of review to challenges to sentences imposed upon the revocation of supervised release. Under the plain error standard, Whitelaw must show an error that is clear or obvious and affects his substantial rights. See Hernandez-Martinez, 485 F.3d at 273. If Whitelaw makes such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id.

III.

Whitelaw argues first that the sentence was unreasonable because the district court ordered it to run consecutively to any other sentence. He maintains that this aspect of the sentence was unreasonable because the district court did not indicate that it knew that it could order the sentence to run concurrently with other sentences. He additionally asserts that this aspect of the sentence violated his plea agreement which allowed him to withdraw his guilty plea if his sentence was ordered to run consecutively to his state court sentence.

The district court has the discretion to order that a sentence imposed upon the revocation of supervised release run concurrently with or consecutively to other sentences. United States v. Gonzalez, 250 F.3d 923, 927-29 (5th Cir.2001). The district court did not specifically state that it knew that it could order Whitelaw's sentence to run concurrently with other sentences. Nevertheless, the Government specifically requested that the sentence run consecutively to other sentences, correctly implying that the district court had the discretion to impose a concurrent or a consecutive sentence. The district court did not indicate that it thought that it was without discretion to impose a concurrent sentence. In the absence of evidence to the contrary, this court assumes that the district court knows the law and applies it correctly. See United States v. Izaguirre-Losoya, 219 F.3d 437, 440 (5th Cir.2000). Whitelaw has not shown that the district court committed error, plain or otherwise, by imposing a consecutive sentence without knowledge that it could impose a concurrent sentence.

Whitelaw's original sentence was subject to a verbal plea agreement made at Whitelaw's rearraignment. The transcript of the rearraignment does not appear in the record. The PSR, however, describes the plea agreement as requiring that Whitelaw's sentence run concurrently with the state court sentence Whitelaw was then serving. We see no indication that the plea agreement applied to any sentence other than for the crime upon which he was charged. The judgment of conviction provides only that Whitelaw's sentence of imprisonment would run concurrently with the state court sentence that Whitelaw was then serving; it did not impose any...

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