United States v. Rowan

See case details

UNITED STATES of America, Plaintiff-Appellant, v. Richard ROWAN, II, Defendant-Appellee.

No. 05-30536.

United States Court of Appeals, Fifth Circuit.

June 9, 2008.

530 F.3d 379

must receive written notice of the initial creditors’ meeting under 11 U.S.C. § 341 at least twenty days in advance. FED. R. BANKR. P. 2002(a)(1). Written notice is not required if the date of the continuation is set at the original meeting. FED. R. BANKR. P. 2003(e). Both parties agree that the transcript of the September 23, 2005 meeting shows that it was continued. The district court found that the debtors had notice in May 2006 that the Trustee intended to continue the meeting to July 2006, at which point the Debtors requested a continuance rather than asserting an objection to the meeting. Thus, the Debtors were not prejudiced by the lack of written notice.

For the foregoing reasons, the decision of the district court is AFFIRMED.

Rebecca L. Hudsmith, Fed. Pub. Def. (argued), Joseph R. Streva, Jr., Lafayette, LA, for Rowan.

Camille Ann Domingue, Asst. U.S. Atty. (argued), Lafayette, LA, for U.S.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, GARZA and PRADO, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

We hereby withdraw the previous panel opinion,¹ and we substitute the following in its place:

Plaintiff-Appellant (the “Government“) appeals the District Court decision sentencing Defendant-Appellee Richard Rowan, II (“Rowan“) to a sixty-month period of probation following his conviction for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). We AFFIRM.

Rowan pleaded guilty to the illegal possession of child pornography. During sentencing, the District Court properly calculated his Guidelines range as 46-57 months of imprisonment. Rather than sentencing Rowan to a term of imprisonment within this range, or even to a modest period of incarceration, the District Court sentenced him to a sixty-month period of probation. The Government timely appealed. We vacated and remanded for resentencing under

United States v. Duhon, 440 F.3d 711 (5th Cir. 2006) (vacating sentence of probation for possession of child pornography), cert granted, judgment vacated by

___ U.S. ___, 128 S.Ct. 853, 169 L.Ed.2d 705 (2008). Rowan petitioned for certiorari.

Following our decisions in Duhon and Rowan, the Supreme Court issued

Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (clarifying appellate review of District Court sentencing decisions). The Supreme Court granted Rowan‘s petition for certiorari, vacated our previous decision in Rowan, and remanded the case for consideration under Gall. We now revisit this case in light of Gall.

We review District Court sentencing decisions for abuse of discretion.

Gall, 128 S.Ct. at 597. Our review is bifurcated.

Id. at 597-98;

United States v. Rodriguez, 523 F.3d 519, 524-25 (5th Cir. 2008). First, we must determine whether the District Court committed any significant procedural error.

Gall, 128 S.Ct. at 597;

Rodriguez, 523 F.3d at 525. The District Court commits a procedural error if: it miscalculates or fails to calculate the proper Guidelines range; it treats the Guidelines as mandatory; it imposes a sentence based on clearly erroneous facts; it fails to consider the factors set forth in 18 U.S.C. § 3553(a); or it fails adequately to explain its chosen sentence or any deviation from the Guidelines range. See

Gall, 128 S.Ct. at 597;

Rodriguez, 523 F.3d at 525. Second, if the District Court has committed no significant procedural error, we review the sentence for substantive reasonableness. See

Gall, 128 S.Ct. at 597;

Rodriguez, 523 F.3d at 525.

Sentences fall into three categories: (1) those within a properly calculated Guidelines range, (2) those outside a properly calculated Guidelines range that are based on an allowed upward or downward departure, and (3) those outside a properly calculated Guidelines range that are not based on an allowed departure.

United States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007). Rowan‘s sentence is outside the applicable Guidelines range and was not based on an allowed departure. See U.S.S.G. § 5B1.1. Therefore, Rowan‘s sentence is a non-Guidelines sentence. See id.;

Davis, 478 F.3d at 273.

When the District Court imposes a non-Guideline sentence, we “may consider the extent of the deviation, but must give due deference to the district court‘s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”

Gall, 128 S.Ct. at 597. Even if we “might reasonably have concluded that a different sentence was appropriate, [this] is insufficient to justify reversal of the district court.” See

id.

We find no significant procedural error in the District Court‘s sentencing decision: the District Court properly calculated the Guideline range, heard arguments concerning appropriate sentences, and meticulously considered the § 3553(a) factors. Based on the foregoing, the District Court concluded that a non-Guidelines sentence of a sixty-month period of probation was appropriate. In light of the deferential standard set forth in

Gall, 128 S.Ct. at 597-98, we AFFIRM.

Notes

1

1.

United States v. Rowan, No. 05-30536, 2008 WL 2266995, (5th Cir. June 4, 2008)

Case Details

Case Name: United States v. Rowan

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 9, 2008

Citation: 530 F.3d 379

Docket Number: 05-30536

Court Abbreviation: 5th Cir.