* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10009

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MICHAEL ANTHONY BAKER

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:98-CR-108-10

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Michael Anthony Baker appeals his consecutive 18-month sentences

following the revocation of his supervised release. We AFFIRM.

In 1998, Baker was found guilty of bank fraud after a jury trial. His

sentence included a period of incarceration, which was followed by a five-year

period of supervised release. In January 2004, Baker began his supervised

release. In September 2007, a probation officer petitioned the court for Baker’s

arrest due to violations of his terms of supervision. A revocation hearing was

United States Court of Appeals

Fifth Circuit

F I L E D

December 4, 2008

Charles R. Fulbruge III

Clerk
No. 08-10009

2

held in December 2007, resulting in the district judge’s finding that all the

claimed violations had occurred. Baker received two 18-month sentences to run

consecutively, followed by concurrent terms of 42 months of supervised release.

On appeal, Baker argues that the district court sentenced him without

properly considering the factors set forth in 18 U.S.C. § 3553(a), that the district

court exceeded the sentencing range recommended by the policy statements in

the United States Sentencing Guidelines, and that the sentences were made

unreasonable or plainly unreasonable by the requirement that they be served

consecutively. Additionally, Baker asserts that imposition of concurrent 42-

month terms of supervised release further compounds the unreasonable nature

of his sentences.

Prior to United States v. Booker, 543 U.S. 220 (2005), we would uphold a

sentence imposed after revocation of supervised release unless it violated the law

or was plainly unreasonable. United States v. Gonzalez, 250 F.3d 923, 925 (5th

Cir. 2001). Since Booker, appellate courts review a sentence to determine if it

is reasonable, applying an abuse-of-discretion standard. Gall v. United States,

128 S. Ct. 586, 594, 597 (2008). We have not yet, though, decided the

appropriate standard of review for a post-Booker revocation sentence. See

United States v. McKinney, 520 F.3d 425, 428 (5th Cir. 2008). Regardless,

Baker’s sentences are sustainable no matter the standard, as we will discuss.

When sentencing a defendant after the revocation of supervised release,

the district court may impose any sentence that falls within the appropriate

statutory maximum term of imprisonment allowed for the revocation sentence.

18 U.S.C. § 3583(e)(3). In choosing a sentence, the district court is directed to

consider the factors enumerated in Section 3553(a), including the nonbinding

policy statements found in Chapter Seven of the Guidelines. United States v.

Mathena, 23 F.3d 87, 90-93 (5th Cir. 1994).

Baker’s underlying offense of bank fraud is a Class B felony because it

carried a penalty of up to 30 years of imprisonment. 18 U.S.C. §§ 1344,
No. 08-10009

3

3559(a)(3). Therefore, the maximum statutory sentence that could be imposed

for the violation of his supervised release was three years. Id. § 3583(e)(3).

Although the 18-month sentences exceeded the advisory range of three to nine

months in prison, they did not exceed the statutory maximum and are therefore

proper. Id.; see also United States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005).

Moreover, the district court considered the policy statements of Chapter Seven

and determined thatthe facts ofthe instant case warranted a sentence above the

recommended range. 

Lastly, the imposition of consecutive revocation sentences is specifically

authorized by statute, and there was no error in calculating the postrevocation

terms of supervised release. See Gonzalez, 250 F.3d at 926; United States v.

Vera, 542 F.3d 457, 459 (5th Cir. 2008). Baker has not shown that the sentences

imposed following the revocation of his supervised release were unreasonable or

plainly unreasonable. See McKinney, 520 F.3d at 428. 

The district court’s judgment is AFFIRMED.