IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60313

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DAVID GARLAND ATWOOD, II,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Mississippi

USDC No. 5:04-CR-17-1

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

David Garland Atwood, II, appeals from the revocation of his supervised 

release. He challenges the revocation proceedings at which he was found guilty 

of three of the five alleged violations of the conditions of his supervised release 

and his resulting above-guidelines revocation sentence of 72 total months of 

imprisonment and a lifetime term of supervised release.

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 9, 2014

Lyle W. Cayce

Clerk

 

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Atwood argues that the district court judge erred by not recusing himself 

because he was assigned to related civil cases. He has not shown that the judge 

abused his discretion. See 28 U.S.C. § 455; United States v. Anderson, 160 F.3d 

231, 233 (5th Cir. 1998). Atwood alleges that the origin of the judge’s bias was

knowledge that he obtained while conducting his judicial duties, which is not 

a basis for disqualification. See Conkling v. Turner, 138 F.3d 577, 592 (5th Cir. 

2003). Also, his claim that the judge was biased because he made rulings 

against him in the civil cases does not support a claim of prejudice justifying

recusal. See § 455(b); Liteky v. United States, 510 U.S. 540, 555 (1994). Atwood

also has not shown that the judge’s assignment to the civil and revocation cases 

would raise a question in the mind of a reasonable person as to the judge’s 

impartiality and has not identified evidence to suggest that the judge could not 

render a fair judgment. § 455(a); Anderson, 160 F.3d at 233; Liteky, 510 U.S. 

at 455.

Atwood further asserts that the district court violated Federal Rule of 

Criminal Procedure 32.1 and his due process rights by not providing adequate 

notice of two of the grounds on which he allegedly violated his supervised 

release (i.e., Charges One and Three). However, he has not shown that the 

district court plainly erred. See Puckett v. United States, 556 U.S. 129, 135 

(2009); United States v. Magwood, 445 F.3d 826, 828 (5th Cir. 2006). He was 

found not guilty of Charge One and, thus, any deficiency did not affect his 

substantial rights. See Puckett, 566 U.S. at 135. With respect to Charge Three, 

the revocation petition set forth the nature of the charge and the essential facts 

that the Government sought to prove and, thus, he had sufficient notice of the 

purported violation to be able to prepare and present a defense. See FED.

R. CRIM. P. 32.1; Morrissey v. Brewer, 408 U.S. 471, 486-87 (1972). To the 

extent that Atwood argues that he was denied a preliminary hearing, he 

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likewise has not shown any effect on his substantial rights in light of the 

disposition of the revocation hearing. See FED. R. CRIM. P. 32.1(b)(1)(A), (B); 

Puckett, 556 U.S. at 135.

Atwood maintains that the evidence was insufficient to prove that he 

violated the three conditions of his supervised release of which he was found 

guilty. A district court does not abuse its discretion in revoking a defendant’s 

supervised release if, viewing the evidence in the light most favorable to the 

Government, a preponderance of the evidence supports that a defendant 

violated the conditions of supervised release. United States v. McCormick, 54 

F.3d 214, 219 (5th Cir. 1995); United States v. Alaniz-Alaniz, 38 F.3d 788, 792 

(5th Cir. 1994); see § 3583(e)(3). 

The record supports that the district court had a sufficient basis to find 

that Atwood was guilty of the allegation that he engaged in criminal activity 

leading to his arrest for trespassing. The evidence reflected that, despite being 

warned that he was not allowed in areas that the City of Vicksburg controlled 

for purposes of the Miss Mississippi Pageant, Atwood three times breached the 

established perimeter and entered restricted areas without authorization. To 

the extent that he argues that his arrest violated the First Amendment, he has 

not shown that probable cause did not exist to arrest him for trespassing. See 

Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008); United States v. McCowan, 

469 F.3d 386, 390 (5th Cir. 2006). 

The district court likewise had a sufficient basis to conclude that Atwood 

violated the condition requiring him to register as a sex offender. The evidence 

showed that Atwood violated Mississippi law by staying at the home of Roger 

Cole in Pearl, Mississippi, for at least 14 days between May 2011 and August 

2011 without properly registering the address as a temporary residence. See 

MISS. CODE ANN. §§ 45-33-23(h), 45-33-25(c). While Atwood arguably offered 

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competing evidence, the district court found it not to be credible; we must defer 

to the district court’s credibility determinations and consider the evidence in 

the light most favorable to the Government. See United States v. Goncalves, 

613 F.3d 601, 609 (5th Cir. 2010); Alaniz-Alaniz, 38 F.3d at 792.

The record further reflects that the district court had a sufficient basis 

to find that Atwood violated the condition requiring him to keep a daily log of 

websites that he visited on his personal computer. The evidence showed that

he was unable to produce to his probation officer a physical log of the websites 

that he visited and that he admitted his noncompliance. To the extent that he 

argues that a log automatically compiled by his computer would satisfy the 

condition, his claim lacks merit because it is not a commonsense reading of the 

condition, and the record supported that Atwood was aware that the condition 

required production of a physical log. See United States v. Paul, 274 F.3d 155, 

167 (5th Cir. 2001). 

Atwood argues that the district court violated his double jeopardy rights 

by sentencing him based on the conduct underlying Charge One, which he was 

found not guilty of violating. Atwood has not shown reversible plain error. See 

United States v. Odutayo, 406 F.3d 386, 392 (5th Cir. 2005). We have held that 

double jeopardy does not apply to a revocation proceeding, although in different 

contexts. See United States v. Whitney, 649 F.2d 296, 297-98 (5th Cir. Unit B 

1981). In any event, even if it does apply, the sentencing court was permitted 

to consider the facts regarding Charge One without violating double jeopardy 

principles. See United States v. Watts, 519 U.S. 148, 153 (1997); Witte v. United 

States, 515 U.S. 389, 393 (1995); see also 18 U.S.C. § 3661; U.S.S.G. §§ 1B1.3, 

1B1.4. 

Atwood’s claim that admission of testimony from the alleged victims and 

their mothers violated the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, 

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because the witnesses were not “crime victims” for purposes of the statute is 

also unavailing. The witnesses did not testify as victims of Charge One and 

instead testified about Atwood’s character, which was relevant for purposes of 

sentencing. Thus, Atwood has not shown plain error on this basis. See Puckett,

556 U.S. at 135.

Atwood asserts that the district court violated Federal Rule of Criminal 

Procedure 32.1 by limiting his ability to allocute and offer mitigation evidence. 

However, the district court did not plainly err. See United States v. Reyna, 358

F.3d 344, 350-51 (5th Cir. 2004) (en banc). The record establishes, and Atwood 

concedes, that he had the opportunity to offer an extensive allocution. To the 

extent that Atwood argues that he was discouraged from raising several issues 

that he sought to discuss, the record reflects that he had a meaningful chance 

to address the issues that he wished to discuss, and he has not established that 

the district court was required to permit him to introduce new evidence or offer 

arguments not based on previously introduced evidence. Accordingly, Atwood 

has not shown clear or obvious error. See id. at 347, 350. Likewise, he has not 

shown that any error committed by the district court in this regard warrants 

the exercise of this court’s discretion. See Magwood, 445 F.3d at 830.

Atwood contests his revocation sentence on various grounds. He argues 

that the district court selected his sentence for the impermissible reasons of 

punishing him for the seriousness of his offense and promoting respect for the 

law; the district court did not properly consider and justify its sentence based 

upon the 18 U.S.C. § 3553(a) sentencing factors or the policy statements; the 

district court based his sentence on clearly erroneous facts; and his 72-month 

sentence was excessive. We review preserved challenges to revocation 

sentences, as here, under the deferential plainly unreasonable standard. See 

United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). 

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The record does not reflect that the district court relied on the improper 

factors listed in § 3553(a)(2)(A) in selecting Atwood’s sentence. See id. at 844.

Instead, the court cited permissible § 3553(a) factors to explain its selection of 

sentence and found that these factors merited a sentence outside the guidelines 

range; the court made an individualized assessment based on Atwood’s history 

and characteristics, the nature and circumstances of the offense, and the need 

to protect the public; selected a sentence that it believed was merited in light 

of those factors; and noted those factors in explaining the sentence imposed. 

See § 3553(a)(1), (a)(2)(C); Miller, 634 F.3d at 844; Rita v. United States, 551 

U.S. 338, 357 (2007). The district court also reviewed Atwood’s mitigation 

arguments and evidence, and any disagreement that Atwood has with the 

court’s weighing of the § 3553(a) factors does not establish that his sentence is 

unreasonable, and certainly not plainly unreasonable. See Gall v. United 

States, 552 U.S. 38, 51-52, 56-60 (2007).

Further, Atwood has not shown that the district court erred by basing 

his sentence on clearly erroneous facts. See United States v. Warren, 720 F.3d 

321, 326 (5th Cir. 2013). The district court did not find that Atwood committed 

sex offenses in the instant case but rather that his failure to register created 

the circumstances that would allow him to commit the acts that the sexoffender registration condition was designed to prevent and which he had been 

convicted of committing previously. Moreover, there was evidence offered at 

sentencing that Atwood used aliases and false identities in his dealings with 

the alleged victims of Charge One and their mothers, and, thus, that finding 

was not clearly erroneous. See id. Also, contrary to Atwood’s claim, the record 

does not support that the district court affirmatively found that Atwood had 

HIV or herpes; the district court noted at sentencing that the evidence on the 

issue was inconclusive and irrelevant to the sentence imposed and indicated in 

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the Statement of Reasons (SOR) that it merely considered the evidence without 

making any particular finding. 

Atwood’s 72-month revocation sentence was not excessive. The district 

court may impose any sentence that falls within the statutory maximum prison 

term allowed for the revocation sentence. See § 3583(e)(3); United States v. 

McKinney, 520 F.3d 425, 427 (5th Cir. 2008). Atwood’s sentence was equal to, 

but did not exceed the statutory maximum and, therefore, it was not plainly 

unreasonable. See Warren, 720 F.3d at 324-25, 332-33.

Atwood alleges that the oral pronouncement of sentence conflicts with 

the SOR because, whereas the district court at sentencing stated that it was 

not certain whether Atwood had HIV and herpes, the SOR cited the fact that 

Atwood had the conditions as a basis for the sentence imposed. However, he 

has not shown any conflict; the district court noted at sentencing and in the 

SOR that it reviewed the evidence, made no finding whether Atwood had the 

conditions, and found that the sentence imposed was merited apart from the 

issue.

Atwood argues that his due process rights were violated because Roger 

Cole gave false testimony at the revocation hearing that was inconsistent with 

a written statement that he gave to law enforcement. However, Atwood has 

not shown that the district court plainly erred in admitting the testimony. See

Puckett, 556 U.S. at 135. He specifically has not established that the issues on 

which Cole allegedly testified falsely were material. See United States v. 

Mason, 293 F.3d 826, 828 (5th Cir. 2002).

Finally, Atwood contends that the cumulative effect of the errors in his 

revocation proceedings warrant reversal. However, he has not shown that the 

cumulative effect of any errors precluded a fundamentally fair proceeding. See

United States v. Fields, 483 F.3d 313, 362 (5th Cir. 2007).

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Accordingly, the judgment of the district court is AFFIRMED. Atwood’s 

motion to supplement the record, to open and review trial exhibits, and to have 

the case reassigned to a different judge on remand are DENIED.

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