457 F. App'x 417
5th Cir.2012Background
- Hudson appeals the district court's revocation sentence of 23 months' imprisonment and 13 months' supervised release.
- Hudson argues the court plainly erred by considering §3553(a)(2)(A) factors such as punishment and the offense's seriousness in revocation.
- Because Hudson did not object at sentencing, the court reviews for plain error only.
- After sentencing, Miller held it improper to rely on §3553(a)(2)(A) factors for revocation determinations.
- There is an internal circuit split on whether plainness is judged at sentencing or appellate time; this court applies the earliest controlling standard after Olano.
- The court finds the district court plainly erred by considering a prohibited factor and reverses for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by relying on §3553(a)(2)(A) factors in revocation | Hudson contends the error was plain and prohibited. | United States argues Miller bars consideration of those factors for revocation. | Yes; district court plainly erred. |
| Whether rehabilitation consideration under Tapia applies to revocation | Hudson argues Tapia limits apply to rehabilitation in sentencing. | Breland allows rehabilitation considerations in revocation proceedings. | Foreclosed; Tapia does not apply here. |
Key Cases Cited
- United States v. Miller, 634 F.3d 841 (5th Cir. 2011) (improper for district court to rely on §3553(a)(2)(A) in revocation)
- United States v. Olano, 507 U.S. 725 (Supreme Court 1993) (plain error standard and timing of plainness analysis)
- United States v. Knowles, 29 F.3d 947 (5th Cir. 1994) (error plain when plain at time of appeal)
- United States v. Wheeler, 322 F.3d 823 (5th Cir. 2003) (earlier controlling precedent in conflict cases)
- United States v. Garcia-Rodriguez, 415 F.3d 452 (5th Cir. 2005) (plainness determined under existing law at time of trial)
- United States v. Hull, 160 F.3d 265 (5th Cir. 1998) (plainness at time of appeal vs trial)
- United States v. Bishop, 603 F.3d 279 (5th Cir. 2010) (circuit split on timing of plain error analysis)