United States v. Michael Illies
2015 U.S. App. LEXIS 19131
| 5th Cir. | 2015Background
- Michael Illies was on federal supervised release from a prior conviction when he traveled from Texas to Arkansas without permission.
- In Arkansas he was arrested and pled guilty to possession of methamphetamine with intent to deliver; state court sentenced him to 20 years with 12 suspended.
- At the federal revocation hearing Illies admitted the new felony conviction and the applicable advisory Guidelines range of 27–33 months.
- The district court imposed a 27-month revocation sentence to be served consecutively to any other sentence and no supervised release.
- Illies did not object in district court and raised new challenges on appeal; the Fifth Circuit reviewed for plain error.
- The Fifth Circuit affirmed the sentence but remanded solely to correct a clerical omission in the written judgment (to reflect the oral order of consecutiveness).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court procedurally erred by not considering specific § 3553(a) factors under § 3583(e) | Illies: court was required to consider §§ 3553(a)(1), (2)(B)-(D), (4)-(7) and should not rely on (2)(A) | Government: revocation was mandatory under § 3583(g); court not required to consider those factors and may consider (2)(A) | Court: No error; revocation was mandatory and consideration of §3553(a)(2)(A) was not clear error |
| Whether district court made erroneous factual findings about authorization to travel and whether Illies was selling drugs | Illies: travel was authorized and he was a user, not a seller | Government: factual findings supported by record | Court: factual issues are for district court; findings supported and cannot be plain error |
| Whether the 27-month within-Guidelines sentence was substantively unreasonable | Illies: court overemphasized new conviction and ignored prior compliance | Government: within-Guidelines sentence is presumptively reasonable | Court: Presumption unrebutted; sentence substantively reasonable |
| Whether written judgment must reflect orally pronounced consecutive term | Illies: (n/a — issue arises from discrepancy) | Government/Court: oral pronouncement controls; clerical fix appropriate under Rule 36 | Court: Remanded to correct clerical error so judgment reflects oral consecutive sentence |
Key Cases Cited
- United States v. Whitelaw, 580 F.3d 256 (5th Cir. 2009) (plain-error review when no objection below)
- United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994) (when revocation is mandatory under § 3583(g), court may but need not consider § 3553(a) factors)
- United States v. Pino Gonzalez, 636 F.3d 157 (5th Cir. 2011) (unpublished decisions rejecting identical argument are persuasive)
- United States v. Chung, 261 F.3d 536 (5th Cir. 2001) (fact issues resolved by district court cannot be plain error)
- United States v. Lopez-Velasquez, 526 F.3d 804 (5th Cir. 2008) (within-Guidelines sentence is presumptively reasonable)
- United States v. Hernandez, 633 F.3d 370 (5th Cir. 2011) (appellate court defersto district court’s § 3553(a) balancing)
- United States v. Alvarado, 691 F.3d 592 (5th Cir. 2012) (disagreement with district court’s balancing insufficient to rebut presumption)
- United States v. Torres-Aguilar, 352 F.3d 934 (5th Cir. 2003) (oral pronouncement controls over inconsistent written judgment)
- United States v. Spencer, 513 F.3d 490 (5th Cir. 2008) (Rule 36 appropriate to correct non-substantive clerical errors)
- United States v. Johnson, 588 F.2d 961 (5th Cir. 1979) (remand appropriate to correct clerical errors in judgment)