United States v. Whitelaw

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 19, 2009

No. 08-50346 Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ALAN WHITELAW

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

Before DAVIS, OWEN, and HAYNES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant Alan Whitelaw appeals his sentence imposed upon revocation

of his term of supervised release on several grounds that he failed to bring to the

attention of the sentencing court. Finding no plain error, we affirm.

I.

Alan Whitelaw was convicted of theft of money in an amount exceeding

$200,000 in state court and was sentenced to 60 years of imprisonment.

Whitelaw subsequently pleaded guilty to federal bank fraud charges in the

Southern District of Texas. While the same type of fraudulent conduct was the

basis for both of Whitelaw’s convictions, the federal and state convictions

involved different specific conduct, dates, and victims.

No. 08-50346

Although Whitelaw pleaded guilty to the federal charge without a written

plea agreement, the Government made an oral agreement at rearraignment that

it would recommend that Whitelaw’s sentence run concurrently with his state

court sentence. The district court accepted the agreement as a plea agreement

under F ED. R. C RIM. P. 11(c)(1)(C), ruling that Whitelaw would be allowed to

withdraw his guilty plea if it did not order that his sentence run concurrently

with his state court sentence. The district court sentenced Whitelaw to 46

months of imprisonment, the sentence to run concurrently with his state court

sentence, and five years of supervised release.

Whitelaw served only five years on his state court sentence, was released

from prison, and began serving his term of supervised release as required under

his federal sentence on June 10, 2004. Jurisdiction over Whitelaw’s supervised

release was transferred to the Western District of Texas.

In October 2007, Whitelaw’s probation officer filed a petition for an arrest

warrant to arrest Whitelaw for violating the conditions of his supervised release.

After the district court issued the warrant and Whitelaw was arrested, the

Government filed a motion to revoke Whitelaw’s supervised release and an

amended motion to revoke Whitelaw’s supervised release (“MTR”). In the

amended MTR, the Government alleged that Whitelaw had violated the

conditions of his supervised release by: (1) committing the felony offense of theft

of copper wire valued in excess of $1,000 or possession of stolen copper wire

valued in excess of $1,000; (2) making false statements to his probation officer

by denying that he had committed the offense; (3) obstructing justice by

submitting to his probation officer false or forged documents purporting to relate

to his acquisition of copper wire; (4) not timely reporting to his probation officer

his arrests on June 17, 2007, and October 12, 2007; and (5) failing to timely

report to his probation officer changes in his employment.

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No. 08-50346

Whitelaw pleaded not true to the revocation charges. Following an

evidentiary hearing, the district court declined to rule on the charge that

Whitelaw did not timely report his June 17, 2007 arrest to his probation officer,

but found that the remaining charges were true, and revoked Whitelaw’s

supervised release. The district court determined that Whitelaw’s criminal

history category was I and that his highest grade of supervised release violation

was B, making his statutory maximum sentence 36 months of imprisonment and

his guidelines sentence range 4-10 months of imprisonment. Whitelaw

requested a sentence at the low end of the guidelines range. The district court

sentenced Whitelaw to 36 months of imprisonment, and ordered that sentence

run consecutively to any other state or federal sentence. Whitelaw filed a timely

notice of appeal.

Following the revocation of his supervised release, Whitelaw filed a pro se

motion that included a claim that he should be allowed to withdraw his guilty

plea because his sentence upon the revocation of supervised release was not

ordered to run concurrently with any state court sentence he received. The

district court struck the motion because Whitelaw was represented by counsel

and, therefore, not entitled to make pro se filings. In the alternative, the district

court denied the motion on its merits.

II.

Whitelaw did not raise any of the specific claims of procedural error that

he argues in this appeal when he was before the district court for sentencing.

Accordingly, as Whitelaw concedes, this court reviews those claims for plain

error only. See United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th

Cir.), cert. denied, 128 S. Ct. 325 (2007). Whitelaw also acknowledges that his

argument that his challenge to the sufficiency of the district court’s explanation

of the reasons for the sentence imposed does not need to be preserved is

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No. 08-50346

foreclosed. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.),

cert. denied, 129 S. Ct. 625 (2008).

Whitelaw challenged the district court’s ruling that his sentence would run

consecutively to any other sentence only in the pro se motion he filed following

his revocation hearing. That motion, however, was stricken by the district court

because Whitelaw was represented by counsel. Accordingly, Whitelaw did not

properly raise this claim of specific legal error below, and this court reviews it

for plain error only. See Hernandez-Martinez, 485 F.3d at 272-73.

Whitelaw also did not object to the substantive reasonableness of the

sentence below. Whitelaw’s contest of the revocation charges and request for a

sentence at the low end of the guidelines range are insufficient to preserve the

substantive reasonableness of the sentence for review. See United States v.

Peltier, 505 F.3d 389, 390-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008).

Whitelaw maintains that Peltier conflicts with Hernandez-Martinez, and that

Hernandez-Martinez controls under the rule of orderliness because it is the

earlier opinion. This argument is without merit. In Hernandez-Martinez, 485

F.3d at 272 n.1, Hernandez-Martinez raised a claim of specific legal error rather

than an objection to the substantive reasonableness of his sentence. This court

made it clear that it was not adopting the holding from other circuits that an

objection is not necessary to preserve a substantive reasonableness challenge to

a sentence. See id. Accordingly, when this court held that a defendant must

object to a sentence as unreasonable to preserve a substantive reasonableness

challenge in Peltier, 505 F.3d at 391-92, the holding did not conflict with

Hernandez-Martinez. Therefore, Peltier is the controlling precedent, and

Whitelaw’s substantive reasonableness challenge is subject to plain-error review.

Because all of the issues raised by Whitelaw are subject to plain-error

review, we need not determine whether to apply the reasonableness standard of

review or the plainly unreasonable standard of review to challenges to sentences

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No. 08-50346

imposed upon the revocation of supervised release. Under the plain error

standard, Whitelaw must show an error that is clear or obvious and affects his

substantial rights. See Hernandez-Martinez, 485 F.3d at 273. If Whitelaw

makes such a showing, this court has the discretion to correct the error but only

if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings. See id.

III.

Whitelaw argues first that the sentence was unreasonable because the

district court ordered it to run consecutively to any other sentence. He

maintains that this aspect of the sentence was unreasonable because the district

court did not indicate that it knew that it could order the sentence to run

concurrently with other sentences. He additionally asserts that this aspect of

the sentence violated his plea agreement which allowed him to withdraw his

guilty plea if his sentence was ordered to run consecutively to his state court

sentence.

The district court has the discretion to order that a sentence imposed upon

the revocation of supervised release run concurrently with or consecutively to

other sentences. United States v. Gonzalez, 250 F.3d 923, 927-29 (5th Cir. 2001).

The district court did not specifically state that it knew that it could order

Whitelaw’s sentence to run concurrently with other sentences. Nevertheless, the

Government specifically requested that the sentence run consecutively to other

sentences, correctly implying that the district court had the discretion to impose

a concurrent or a consecutive sentence. The district court did not indicate that

it thought that it was without discretion to impose a concurrent sentence. In the

absence of evidence to the contrary, this court assumes that the district court

knows the law and applies it correctly. See United States v. Izaguirre-Losoya,

219 F.3d 437, 440 (5th Cir. 2000). Whitelaw has not shown that the district

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No. 08-50346

court committed error, plain or otherwise, by imposing a consecutive sentence

without knowledge that it could impose a concurrent sentence.

Whitelaw’s original sentence was subject to a verbal plea agreement made

at Whitelaw’s rearraignment. The transcript of the rearraignment does not

appear in the record. The PSR, however, describes the plea agreement as

requiring that Whitelaw’s sentence run concurrently with the state court

sentence Whitelaw was then serving. We see no indication that the plea

agreement applied to any sentence other than for the crime upon which he was

charged. The judgment of conviction provides only that Whitelaw’s sentence of

imprisonment would run concurrently with the state court sentence that

Whitelaw was then serving; it did not impose any restrictions upon possible

sentences that could be imposed if Whitelaw’s later term of supervised release

was revoked. Accordingly, Whitelaw has not shown that the imposition of a

consecutive sentence upon the violation of supervised release violates the terms

of his plea agreement or that the district court committed error, plain or

otherwise, by ordering that his sentence be served consecutively to any other

sentence.

IV.

Whitelaw argues next that the district court committed procedural plain

error by sentencing him without considering the policy statements in Chapter

7 of the Sentencing Guidelines, and without adequately stating the reasons for

his sentence as required by § 3553(c).

Our review of the record indicates that the district court clearly considered

the policy statements in Chapter 7 of the Guidelines. Whitelaw’s criminal

history category was I. The grade of Whitelaw’s most serious supervised release

violation was B. Accordingly, his advisory guidelines sentence range under

Chapter 7 was 4-10 months of imprisonment. The district court correctly

calculated the advisory guidelines sentence range and identified it as the

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No. 08-50346

guidelines sentence range prior to pronouncing sentence. Defense counsel

referred to that range in its argument and the same range was cited to the court

by the government in its MTR and amended MTR. In the MTRs, the

government made arguments for an above range sentence related to the §

3553(a) factors, including the nature and circumstances of Whitelaw’s offense,

his criminal history, the need for punishment to deter criminal conduct and the

need to protect the public. Accordingly, Whitelaw has not shown that the

district court failed to consider the policy statements in Chapter 7 of the

Guidelines or sentencing factors in 18 U.S.C. § 3553(a).

Whitelaw also argues that the district court committed procedural plain

error for failing to give reasons for his above guideline range sentence. Rita v.

United States sets forth the requirements for the statement of reasons required

to support a sentence under various circumstances.

The sentencing judge should set forth enough to satisfy the

appellate court that he has considered the parties' arguments and

has a reasoned basis for exercising his own legal decisionmaking

authority. See, e.g., United States v. Taylor, 487 U.S. 326, 336-337,

108 S. Ct. 2413, 101 L. Ed. 2d 297 (1988). Nonetheless, when a judge

decides simply to apply the Guidelines to a particular case, doing so

will not necessarily require lengthy explanation. Circumstances

may well make clear that the judge rests his decision upon the

Commission's own reasoning that the Guidelines sentence is a

proper sentence (in terms of § 3553(a) and other congressional

mandates) in the typical case, and that the judge has found that the

case before him is typical. Unless a party contests the Guidelines

sentence generally under § 3553(a) --that is, argues that the

Guidelines reflect an unsound judgment, or, for example, that they

do not generally treat certain defendant characteristics in the

proper way--or argues for departure, the judge normally need say no

more.

Rita v. United States, 551 U.S. 338, 356-357 (2007). Rita goes on to say that

there are two circumstances in which the sentencing court should say more - (1)

“[w]here the defendant or prosecutor presents nonfrivolous reasons for imposing

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No. 08-50346

a different sentence,” and (2) “[w]here the judge imposes a sentence outside the

Guidelines.” Id.

In this case the district court imposed a sentence of 36 months, more than

three times the high end of the guidelines range of 4 to 10 months. Thus, under

the guidance of Rita, some explanation was required. The record contains no

explicit statement setting forth “the specific reason for the imposition of a

sentence different from that described” in the guideline range. 18 U.S.C. §

3553(c). Under plain error review that applies to this issue, we easily find that

the failure to state reasons for a sentence outside the guidelines range is error

that is clear or obvious. We must next consider whether the error affected

Whitelaw’s substantial rights and, if so, decide whether to exercise our discretion

to correct the error if we also find that the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.

This court has not yet applied plain error review to a district court’s failure

to state reasons for an above guideline sentence. In United States v. Mondragon-

Santiago, 564 F.3d 357 (5th Cir. 2009), this court affirmed the defendant’s

within guideline sentence for unlawful reentry. The defendant argued that the

district court committed procedural error by failing to adequately explain its

reasons for the sentence as required by § 3553(c). In Mondragon-Santiago, even

though the district court imposed a sentence within the guideline range, more

explanation was required under the first circumstance described in Rita because

the defendant raised non-frivolous arguments for a downward departure on

several bases. Because the defendant had not raised the objection to the

sentencing court, plain error review was applied.

This court easily found error that was plain, and examined whether the

error affected the defendant’s substantial rights.

To show that an error affects a defendant's substantial rights, the

defendant must show that it affected the outcome in the district

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No. 08-50346

court: "To meet this standard the proponent of the error must

demonstrate a probability 'sufficient to undermine confidence in the

outcome.'" Id. (quoting United States v. Dominguez Benitez, 542 U.S.

74, 83, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004)); see also United

States v. Olano, 507 U.S. 725, 734-35, 113 S. Ct. 1770, 123 L. Ed. 2d

508 (1993).

Id. at 364. This court rejected the relaxed approach to plain error review taken

by the Second Circuit in In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008)

(“And the required showing of prejudice should be slightly less exacting for

sentencing that it is in the context of trial errors.” (internal quotation marks and

citation omitted)); and by the Second Circuit in United States v. Lewis, 424 F.3d

239, 248 (2d Cir. 2005)(“[I]n the sentencing context there are circumstances that

permit us to relax the otherwise rigorous standards of plain error review to

correct sentencing errors.” (internal quotation marks and citation omitted)).

Instead, consistent with Fifth Circuit precedent, we

applied our traditional standards when reviewing sentences,

emphasizing that "the defendant's burden of establishing prejudice

'should not be too easy.'" Mares, 402 F.3d at 521 (quoting Dominguez

Benitez, 542 U.S. at 82). In Mares, this court . . . approvingly cited

the Eleventh Circuit's summary of Supreme Court precedent,

stating the burden of proof requires

the defendant to show that the error actually did make

a difference: if it is equally plausible that the error

worked in favor of the defense, the defendant loses; if

the effect of the error is uncertain so that we do not

know which, if either, side it helped the defendant

loses.

Id. (quoting United States v. Rodriguez, 398 F.3d 1291, 1300 (11th

Cir. 2005)). . . . We are compelled to follow Mares: to show

substantial prejudice, the defendant must prove that the error

affected the sentencing outcome.

Mondragon-Santiago, 564 F.3d at 364. Applying this standard, this court found

no affect on the defendant’s substantial rights for two reasons: (1) the great

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No. 08-50346

deference owed a sentence within the guideline range and the inference that a

judge sentencing within that range has considered all required factors, and (2)

Mondragon-Santiago failed to show that an explanation would have changed his

sentence. Id. at 365. Because Whitelaw was sentenced above the guidelines

range in this case, the first rationale from Mondragon-Santiago does not apply

and we must consider whether our traditional plain error standard is

appropriately applied in this context.

In cases involving above guidelines sentences, the D.C. Circuit and the

Second Circuit have relaxed the showing required by a defendant to demonstrate

that the error affected the defendant’s substantial rights. These courts reason

that the absence of a statement of reasons affects the appellate court’s ability to

perform a meaningful review of the sentence. In re Sealed Case, 527 F.3d at 193;

Lewis, 424 F.3d at 248-49. Both circuits also conclude that the failure to state

reasons undermines “the public reputation of judicial proceedings” because the

statement of reasons indicates to the public that the sentencing judge has

thoughtfully discharged his responsibilities and demonstrates that the judgment

is not arbitrary. Id. See also United States v. Blackie, 548 F.3d 395 (6th Cir.

2008)(same).

Other circuits have declined to follow that lead. The Tenth Circuit

affirmed a below guidelines sentence in which the government argued

procedural error for failure of the sentencing court to cite reasons for a

downward departure. See United States v. Mendoza, 543 F.3d 1186 (10th Cir.

2008). The Tenth Circuit refused to find that the error affected the government’s

substantial rights because, applying traditional plain error analysis, the

government could not explain how a more detailed reasoning process might have

led the court to select a higher sentence. Id. at 1194. In other words, the

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No. 08-50346

government could not show that the error made a difference in the sentencing

outcome. The court refused to presume prejudice.

Even if we were to accept the conclusion of the Second Circuit that a

sentencing court’s failure to state reasons affects the defendant’s substantial

rights by impairing his ability to appeal and this court’s ability to review the

reasons for his sentence, the facts of this case do not support such a conclusion.

Rather our review of the record reveals the reasons for Whitelaw’s sentence,

even if not explicitly stated by the district court. Whitelaw’s sentence followed

an extensive hearing during which the court heard evidence to support its

decision that Whitelaw had violated the terms of his supervised release on

several bases. When the district court then turned to the issue of sentencing, the

defendant and his counsel argued for a sentence at the low end of the guideline

range. Counsel argued that the prior state and federal charges were factually

related and because of the prior sentencing courts’ failure to recognize that

interrelationship, Whitelaw had served 18 months longer in prison than he

should have. The government countered that the defendant had been treated

leniently before. He served only 5 years of the 60 year sentence imposed on the

state theft charges and the federal sentence which ran concurrently was

subsumed within that term. The government also argued that the charges

against Whitelaw reflected a very aggravated and sophisticated theft that he

tried to conceal from his probation officer, the state parole system and the court.

The government then urged the court to sentence Whitelaw to 36 months in

prison (the statutory maximum) for the five reasons set forth in its motion to

revoke and that the sentence be consecutive to any other sentence. The district

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No. 08-50346

court then granted the government’s motion and sentenced Whitelaw to the

government’s recommended 36 month term of imprisonment.1

1

The MTR listed the following reasons which justify that sentence:

1. Prior leniencies shown the Defendant. For three felony theft

offenses, the Defendant was assessed a total of 60 years in

prison, of which he served about 5. In his instant federal

offense, despite his leadership role in inflicting fraud losses of

almost $200,000, the Defendant was not required to pay any

restitution.

2. Defendant’s return to theft. During his supervised release, the

Defendent perpetrated his crime track record by returning to

theft. Approving an upward departure in a criminal case, our

Court of Appeals had the Defendant in mind when reasoning:

“The recidivist’s relapse into the same criminal behavior

demonstrates his lack of recognition of the gravity of his

original wrong, entails greater culpability for the offense for

which he is currently charged, and suggests an increased

likelihood that the offense will be repeated yet again.” United

States v. DeLuna-Trujillo, 868 F.2d 122, 124-25 (5th Cir.

1989).

3. Defendant’s pattern of criminal deception. During the course

of the Defendant’s supervised release, the Defendant lied to

a state judge through falsified documents and lied to his

probation officer and other officials through bogus documents

relating to his acquisition of copper wire. Such conduct

constitutes multiple felony offenses for which the Defendant

could be prosecuted.

4. Need to provide maximum proteciton from Defendant’s

criminality. By blatantly, audaciously, and repeatedly

disregarding his probation officer’s instructions relating to

employment, the Defendant caused thousands of dollars in

losses to off-duty policy officers. With a well-documented

propensity to commit theft and fraud offenses, unabated by

conditions of supervised release, the Defendant represents a

demonstrable danger to the public, justifying maximum

incarceration. See, e.g. United States v. Roberson, 872 F.2d

597, 606 n.8 (5th Cir. 1989); United States v. Fisher, 868 F.2d

128, 130 (5th Cir. 1989).

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No. 08-50346

We have no trouble concluding that by granting the government’s Motion

to Revoke and sentencing Whitelaw to the term of imprisonment recommended

and supported in that motion, the district court implicitly adopted the

government’s rationale for that sentence as set forth in the motion. These

reasons thoroughly explain Whitelaw’s sentence. The factual basis supporting

them is implicit in the district court’s findings that most of the revocation

charges were true. By reviewing the record of the sentencing proceedings in this

case, we are able to conduct a meaningful appellate review. Accordingly, the

district court’s failure to state these reasons on the record has not prejudiced

Whitelaw.

Neither does the district court’s error “seriously affect the fairness,

integrity, or public reputation of judicial proceedings.” We see no indication the

district court considered any impermissible factor when sentencing Whitelaw.

The government’s arguments for an above range sentence related to several

factors listed in § 3553(a), including the nature and circumstances of Whitelaw’s

offense, his criminal history, the need for punishment to deter criminal conduct

and the need to protect the public. Also, there is no indication that the district

court would impose a lighter sentence on remand and the record was more than

sufficient for us to assess the reasons and reasonableness of Whitelaw’s

5. Combinations of reasons, proportionality. The 36 months in

prison we propose: (1) accords due respect for the law and

conditions of supervised release; (2) affords the Defendant an

opportunity for vocational and other programming within the

Bureau of Prisons; and (3) most important, extends the public

the maximum protection it deserves from this theft and fraud

recidivist without further encumbering limited probation-

office resources.

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No. 08-50346

sentence. See United States v. Vigil, 2009 U.S. App. LEXIS 14385 (10th Cir.

June 30, 2009)(applying this record review approach to a guidelines sentence).

Although the district court plainly erred by failing to state the reasons for

imposing an above guideline sentence, Whitelaw has not met his burden of

establishing that the error affected his substantial rights or that the error

affected the public reputation of judicial proceedings, either here or in the

district court.

V.

Whitelaw argues finally that the sentence was substantively unreasonable

because it was far greater than the advisory guidelines sentence range and was

outside of the range of reasonable sentences. Whitelaw’s conviction was for bank

fraud, which carries a maximum sentence of 30 years of imprisonment and is a

Class B felony. See R. 1, 3; 18 U.S.C. §§ 1344, 3559(a)(2). Based on these facts,

the statutory maximum sentence on revocation was 36 months of imprisonment

and his guideline range was 4 to 10 months of imprisonment. Whitelaw’s

sentence of 36 months did not exceed the statutory maximum. See 18 U.S.C.

§ 3583(e)(3). Accordingly, the sentence imposed by the district court did not

constitute plain error. See United States v. Jones, 484 F.3d 783, 792 (5th Cir.

2007) (holding statutory maximum revocation sentence not to be plain error);

United States v. Jones, 182 F. App’x 343, 344 (5th Cir. 2006) (noting that this

court has “routinely upheld release revocation sentences in excess of the advisory

range but within the statutory maximum.”); United States v. Smith, 253 F. App’x

346, 348 (5th Cir. 2007) (holding statutory maximum revocation sentence not to

be plain error).

VI.

For the foregoing reasons, Whitelaw’s sentence is affirmed.

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AFFIRMED.

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