U.S. v. Benford

Full title: UNITED STATES of America, Plaintiff-Appellee v. Joseph BENFORD…

Court: United States Court of Appeals, Fifth Circuit

Date published: Sep 17, 2009

344 F. App'x 929 (5th Cir. 2009)

Opinion

No. 08-50893 Summary Calendar.

September 17, 2009.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Henry Joseph Bemporad, Federal, Public Defender Federal Public Defender's Office Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas, USDC No. 1:96-CR-131-2.

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

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Joseph Benford appeals the 12-month sentence that he received after his supervised release was revoked. Benford argues that his sentence, which was outside the guidelines advisory range, was unreasonable because it overstated the seriousness of his supervised release violations. Because Benford did not make this argument in the district court, review is for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Benford fails to show any error, plain or otherwise.

Although Benford's sentence was above the advisory guidelines range of three to nine months of imprisonment, it did not exceed the five-year statutory maximum sentence to which he was subject. See 18 U.S.C. § 3583(e)(3). We have routinely affirmed revocation sentences exceeding the advisory range, even where the sentence equals the statutory maximum. See United States v. Neal, 212 Fed.Appx. 328, 330-31 (5th Cir. 2007); United States v. Jones, 182 Fed.Appx. 343, 344 (5th Cir. 2006). Further, we have affirmed sentences representing greater deviations from the advisory range than the sentence here. See United States v. Smith, 417 F.3d 483, 491-92 (5th Cir. 2005) (upholding departure from guidelines range maximum of 41 months to 120 months); see also Neal, 212 Fed.Appx. at 330-31 (upholding departure from guidelines range maximum of 14 months to 60 months). Consequently, Benford's sentence is acceptable under both the former "plainly unreasonable" and the United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), "unreasonableness" standards. See United States v. McKinney, 520 F.3d 425, 428 (5th Cir. 2008).

Accordingly, Benford's sentence is AFFIRMED.