UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-30025

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

HAROLD A. ODOMES,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana (00-CR-20047) February 25, 2002

Before GARWOOD, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM*:

On October 2, 2000, Harold A. Odomes appeared in the United

States District Court at Lafayette, Louisiana for a two day jury

trial. Count 1 of Odomes’ indictment charged that on or about

December 4, 1997, Odomes did knowingly embezzle, purloin, steal and

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. convert to his own use, or the use of others, items of military

issue clothing valued at over $1,000, in violation of

. Count 2 of the indictment charged the identical criminal

acts on December 21, 1997. On October 4, 2000, Odomes was found

guilty on all counts as charged in the indictment. The district

court sentenced Odomes on December 21, 2000, to a total term of ten

months imprisonment and to a three year term of supervised release.

Odomes now appeals his sentence claiming that the district court

imposed it under the mistaken assumption that it could not impose

a less onerous sentence.

BACKGROUND

Harold A. Odomes was indicted for two counts of theft of

government property in violation of

. The

indictment alleged that Odomes stole various items of military-

issue clothing while employed as an equipment-issue clerk for the

Department of the Army. A jury found Odomes guilty of the charges.

In accordance with the Sentencing Guidelines, the Presentence

Report (“PSR”) assigned Odomes with a total offense level of 12.

Odomes had no criminal history points placing his criminal history

category at I. With a total offense level of 12 and a criminal

history category of I, the Sentencing Guidelines provided for a

range of imprisonment of 10 to 16 months. U.S.S.G. Ch. 5, Pt. A

(Sentencing Table). As explained in the PSR, however, because the

range of imprisonment was in Zone C of the Sentencing Table, the

2 minimum term of imprisonment could be satisfied under § 5C1.1(d) by

either (1) a sentence of imprisonment; or (2) a sentence of

imprisonment that included a term of supervised release with a

condition that substituted community confinement or home detention

for imprisonment, provided that at least one-half of the minimum

term was satisfied by imprisonment. U.S.S.G. § 5C1.1(d)(1)-(2).

At sentencing, Odomes stated that he had no objections to the

PSR. In response to the district court’s question as to whether

Odomes had anything to say in mitigation of the sentence, Odomes

stated that he accepted blame for the crime and requested that the

district court be “as lenient as possible.” Odomes’ counsel also

stated that Odomes had four minor children that would have to be

placed with various relatives if Odomes was incarcerated as covered

in the PSR. Neither Odomes nor his counsel, however, requested the

district court to impose a split sentence of imprisonment and

community confinement or home detention pursuant to § 5C1.1(d)(2).

The district court also did not mention the availability of a

split sentence under § 5C1.1(d)(2), but it did express that it was

“keenly aware” of Odomes’ responsibilities as a parent and that it

was concerned about what was going to happen to Odomes’ children

while Odomes was in prison. However, the district court

additionally stated that it viewed Odomes’ offense very seriously

and that his action had to have a consequence. The district court

then said: “I’m going to give you the lowest sentence that I can

3 give you under the Sentencing Commission Guidelines, and that’s ten

months.”

The district court further communicated its concern for

Odomes’ children during Odomes’ incarceration, but stated that

“under the guidelines there’s really no alternative.” The district

court again stated that Odomes’ offense was “not a little thing”

and that the district court wanted to make sure that others would

be deterred from committing a similar offense. In addition to

imposing a 10-month sentence, the district court imposed a three-

year term of supervised release and a $200 special assessment. The

10-month period of imprisonment began on January 22, 2001.

DISCUSSION

Odomes argues that the district court abused its discretion in

sentencing him to 10 months in prison because it erroneously

concluded that it was not authorized to impose any other sentence

than the 10-to-16-month sentence set forth in the PSR. Odomes

contends that the district court failed to recognize the

alternative of a split sentence of imprisonment and home detention

allowed by § 5C1.1(d)(2). Odomes consequently asserts that his

sentence should be vacated and that he should be resentenced.

This Court reviews a trial court’s interpretation of the

Sentencing Guidelines de novo and its factual findings for clear

error. United States v. Huerta,

(5th Cir. 1999).

Under

(a), a defendant may seek review of an

4 otherwise final sentence only if the sentence “(1) was imposed in

violation of law; (2) was imposed as a result of an incorrect

application of the [S]entncing [G]uidelines; or (3) is greater than

the sentence specified in the applicable guideline range . . . ; or

(4) was imposed for an offense for which there is no sentencing

guideline and is plainly unreasonable.”

(a); see

United States v. DiMarco,

(5th Cir. 1995)

(explaining that § 3742(a) “permits a defendant to appeal for

review of his sentence in four circumstances”). Odomes appears to

be contesting the district court’s decision as an incorrect

application of the Sentencing Guidelines. However, a district

court’s refusal to depart from the guidelines can be reviewed by

this Court only if the district court based its decision upon an

erroneous belief that it lacked the authority to depart. United

States v. Valencia-Gonzales,

(5th Cir. 1999).

Therefore, before we may review Odomes’ case, we must come to

the conclusion that the district judge was unaware of the options

under the Guidelines and felt constrained to make its decision

based on this ignorance. There is very little case law, however,

involving how to review whether the district court’s decision,

regarding alternative forms of punishment, was informed. We find

some analogy in the present case, to cases in which the defendant

appeals a district court’s decision not to depart downward because

of an erroneous belief that it lacked the authority to depart. In

5 such cases, in order to review the decision, “something in the

record must indicate that the district court held such an erroneous

belief.” United States v. Landerman,

(5th Cir.

1999). “[A] district court’s summary denial without explanation

does not indicate any such erroneous belief.” Valencia-Gonzales,

(citing United States v. Aggarwal,

(5th Cir. 1994)).

In the present case, the record does not clearly indicate

whether the district judge was aware of the options under §

5C1.1(d)(2). Though some concern was indicated by the district

court as to the time that Odomes would be incarcerated, the court

also indicated that it felt punishment was necessary. Odomes would

have this Court believe that the district court’s statements such

as “under the guidelines there’s really no alternative,” indicates

that the court was unaware of § 5C1.1(d)(2). However, the court’s

stern condemnation of Odomes’ crime, along with the fact that the

PSR included this alternative in its text, leads us to conclude

that the judge simply chose between alternate punishment schemes,

and was at all times aware of the options available to it.

Neither Odomes nor his counsel raised the possibility of

imposing an alternate punishment at the sentencing hearing and so,

we review the district court’s decision for plain error. Thames,

214 F.3d at 612; United States v. Flanagan,

(5th

Cir. 1996). This Court can grant relief under the plain error

6 standard if the error complained of is clear under current law and

affects substantial rights. United States v. Olano,

(1993). A court of appeals, however, should not exercise

its discretion to correct the error unless the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings. Id. at 527.

We hold that the district court’s choice of sentencing in this

case does not rise to the level which requires correction.

CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective briefing, we conclude that the district court

did not abuse its discretion in sentencing Odomes to ten months of

imprisonment rather than the less onerous alternative under §

5C1.1(d)(2). We therefore AFFIRM the district court’s sentence.

AFFIRMED.

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