United States v. Tony Lam

U.S. Court of Appeals for the Fifth Circuit
United States v. Tony Lam, 402 F. App'x 964 (5th Cir. 2010)

United States v. Tony Lam

Opinion

PER CURIAM: *

Tony Lam appeals the 15-month sentence he received on revocation of his supervised release, following his guilty plea conviction for possession with intent to distribute 500 grams or more of cocaine. Lam argues that the sentence imposed on revocation was unreasonable because it was imposed to run consecutively to the 80-month sentence imposed for the underlying conviction and that the court abused its discretion in denying his request to impose a concurrent sentence. Lam contends that the district court failed to state its reasons for imposing a consecutive sen *965 tence and that the failure to state such reasons evinced a failure to consider the 18 U.S.C. § 3553(a) factors.

We have yet to address whether sentences imposed upon revocation of supervised release are to be reviewed under the “unreasonableness” standard of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Prior to Booker, we applied a “plainly unreasonable” standard. See United States v. Hinson, 429 F.3d 114, 119-20 (5th Cir. 2005). We need not decide the correct standard today because Lam’s sentence is appropriate under either standard. See id. at 120. To the extent that Lam challenges the district court’s failure to provides reasons for imposing a consecutive sentence, plain error review is applicable because Lam did not object in the district court on this ground. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, — U.S. ——, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009).

“The decision to impose a consecutive ... sentence upon revocation of supervised release is committed to the sound discretion of the district court.” United States v. Cotroneo, 89 F.3d 510, 512 (8th Cir. 1996). The district court’s decision to run the revocation sentence consecutive to the sentence on the underlying charge was authorized by statute and is preferred under the guidelines policy statements. See 18 U.S.C. § 3584; U.S.S.G. § 7B1.3(f) & comment, (n.4.). Additionally, the sentencing transcript reflects that the district court considered the § 3553(a) factors when imposing Lam’s revocation sentence. Although the district court did not expressly identify its reasons for imposing a consecutive sentence, any error in failing to explain that choice does not warrant relief under plain error review because Lam cannot show that any error had an effect on the outcome of the sentencing proceedings. See Mondragon-Santiago, 564 F.3d at 361; see also United States v. Whitelaw, 580 F.3d 256, 261-65 (5th Cir. 2009).

Accordingly, Lam’s revocation sentence satisfies the “plainly unreasonable” and Booker “unreasonableness” standards. See Hinson, 429 F.3d at 120.

AFFIRMED.

*

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.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee v. Tony LAM, Defendant-Appellant
Status
Unpublished