### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30338

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. ROBERT LEE JONES, Defendant - Appellant

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:02-CR-174-1

Before JOLLY, DeMOSS, and PRADO, Circuit Judges. PER CURIAM: * Robert Lee Jones appeals his 24- m onth term of imprisonment imposed following the revocatio n o f h is supervised release. Jones argues that the

s e nt e nce of imprisonment is excessive for a non-violent offender who s uf f er s f ro m Stage IV Hodgkin’s lymphoma. Finding no error, we affirm I. Jones pled guilty in 2002 to social security fraud, bank fraud, and access device fraud, in vi olation of 18 U.S.C. §§ 1028(a)(7), 1344, and 1029(a)(2), U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 , 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-30338 Document: 00511592176 Page: 1 Date Filed: 09/02/2011No. 11-30338

respectively. On each count, the district court sentenced Jones to eighty-seven months of imprison m e nt an d thre e ye ar s of supervised release, with the sentence for each count to be served concurrently. 1 Jones began his term of supervised release on August 20, 2 0 1 0

. O n September 30, his probation officer petitioned t h e di strict court to issue a violator’s warrant for his failure to report to the Probation Office for the Eastern District of Louisiana within 72 hours of release from i m p ri s o nment. Jones’s whereabouts remained unknown until personnel of the Gwinnett County, Georgia Sheriff’s Office arrested and charged him with forgery and two counts of credit card fraud on December 21. Jones pled guilty to those ch a r g e s o n February 15, 2011. He was sentenced to thirty days of imprisonment and four years and eleven months of probation as to the forgery charge, and three years probation as to the credit card fraud charges, with the sentence for each count to be served concurrently. On March 16, 2011, the Government moved to revoke Jones’s supervised release, charging him with violating the conditions of his supervised release by failing to report w i th i n 72 hours of release from imprisonment and by committing the Georgia offenses. The district court held a revocation hearing on March 29. T he court informed Jones that h i s calculated advisory guideline range under the United States Sent e ncing Guidelines (“Sentencing Guidelines”) was eighteen to twentyfour months of imprisonment on each count of conviction, and that the statutory 2

The dis tri ct cour t als o ord ere d Jones to pay res tit utio n to se veral fina ncial ins tit utio ns 1 in the amo unt of $154, 054. 19, to mak e com ple te dis clos ure o f h i s p e r so nal and bus ines s fina nces and submi t to an audi t of his financ ial rec ord s, to ref rain from incur ring new cre dit char ges or ope ning additio nal lines of cre ditwit houtappr oval fr omt he pr obat ion off ice, and to par tic ipat e i n anor ient atio n an d lif e s ki llsp rogr am as dir ect ed by t he pr obat ion off ice. Und er the advis ory pol icy st atem ents in C h a p t e r 7 of the Sent enci ng Gu ide lines , 2 Jones ’s violat ions we re Gr ade B violat ions

. See U. S. S. G. § 7B1.1 (a) (2)

. B e c a u se Jones ’s cri mi n a l his tory cat egory wa s V, his advis ory guide line range wa s eighte en to tw enty- fou r mo nths of

im priso nme nt on eachc ountof c onvict ion. SeeU .S .S .G

. § 7 B1.4( a). 2 Case: 11-30338 Document: 00511592176 Page: 2 Date Filed: 09/02/2011No. 11-30338

maximum terms of imprisonment under 18 U.S.C. § 3583(e)(3) were two years

as to the social security fraud and access device fraud charges and three years

as to the bank fraud charge. The district court furth e r i n f o rmed Jones that it could reimpose supervised release of up to thirty-six mont h s a s t o the social security fraud and access device fraud charges and up to sixty months as to the bank fraud charge, less any term of imprisonment imposed on each count. See 18 U.S.C. § 3583(h). Jones stipulated to the allegations at the hearing. He expl a i n e d the

reasons for his failure to r e p o r t and the circumstances underlying his recent Georgia convictions. During his allocution, he confirmed that he suffered from numerous health problems, including Stage IV Hodgkin’s lymphoma, and that he did not expect to live through completion of his sentence. He requested only t h a t t h e court impose a sentence it felt was appropriate, order the last six months to be served on home confine m e n t, designate that he serve his imprisonment at the federal medical center in Lexington, Kentucky, and order his immediate designation to the Bureau of Prisons so he could restart tre at m e nt for his medical conditions. The district court r ev o ked Jones’s supervised release. On each count, it imposed a 24-month term of imprisonment, with the sentence for each count to be served concurrently. It also imposed a 1-year term of supervised release as to the social security fraud and access device fraud charges, and a 3-year term of supervised release as to the bank fraud charge, all to be served concurrently. The court reasoned that the sentence was appropriate because Jones had “a long history of these financial fraud-type convictions,” and he was “no stranger to federal procedures and reporting requiremen t s . ” H i s failure to report, in the district court’ s vi e w , was “obvious and inexcusable,” though for mitigation
purposes, it accounted for the fact that Jones had sent a letter to a then-retired P r ob ation Officer requesting an extension to report. The court also explained

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t h a t his health was a factor it had considered, as it did for every defendant. Although it declined to impose consecutive revocation se n t ences, the district court imposed the maximum advisory guideline sentence bec a u s e o f Jones’s “inexcusable” “continuation and pattern of behavior.” Jones timely appealed. II. Jones concedes that because he did not raise an objection to the 24-month term of imprisonment in t h e district court, plain error review applies. Had 3 Jones properly preserved his objection, we would review to determine whether the sentence was plainly unreasonable. United States v. Miller , 63 4 F .3d 841, 843 (5th Cir. 2011), petition for cert. filed , No. 10-10784 (May 27, 2011). Because Jones did not object, however, we review under a more deferential standard for plain error. United States v. Davis , 602 F.3d 643, 646–47 (5th Cir. 2010); United States v. Jones , 484 F.3d 783, 792 ( 5 t h C i r . 2 007). To meet this standard of review, Jones must first show (1) a forfeited error, (2) that is clear or ob vious, and (3) that affects his substantial rights. See Puckett v. United States , 556 U.S. 129, 129 S.Ct. 1423, 1429 (2009). If Jones makes all of these showings, then we have the discretion to correct the error if it seriously affe c t s t h e f airness, integrity, or public reputation of judicial proceedings. Id. III. After revoking a defendant’s supervised rel e a s e , a district court may impose any sentence that falls within the statutory maximum term allowed for the revocation sentence, but it must consider the factors enumerated i n 18 U.S.C. § 3553(a) and the policy statements in Chapter 7 of the Sentencing Guidelines before doing so. 18 U.S.C. § 3583(e); Davis , 602 F.3d at 646; United States v. McKinney , 520 F.3d 425, 427–28 (5th Cir. 2008). Jones doe s not suggest that the district court erred, procedurally or otherwise, in fashioning the

Att he revoc atio n hearing, Jones objec ted only to the dis tri ct cour t’s r eim pos itio n o f 3 sup ervis ed rele aseund er 18 U .S .C. § 3583(h). 4 Case: 11-30338 Document: 00511592176 Page: 4 Date Filed: 09/02/2011No. 11-30338

24-month term of imprisonment. Instead, he argues that the sentence is too long for a n o n - vi olent offender who has Stage IV Hodgkin’s lymphoma. He also distinguish e s t h e scale of his recent Georgia fraud convictions from those underlying his 2002 federal convictions. H e r e, the district court imposed a sentence on each count that was not only within the statutory maximum term of imprisonment, but also within the advisory guideline range of eighteen to twenty-four months. In McKinney , this court upheld, under the less stringent “un r e a sonable” and “plainly unreasonable” standards of review, a revocation sentence that was within the advisory guideline range and the statutory ma xi m u m term of imprisonment. McKinney , 520 F.3d at 432; see also Un i ted States v. DeLeon-Fuentes , 310 F. App’x 686, 687 (5th Cir. 2009) (affirming on plain err o r review revocation sentence that fell within the statutory maximum ter m of imprisonment and within the range re c o m m e n d ed by the Sentencing Guidelines). In the instant
case, the district court heard from defense counsel and Jones regarding the seriousness, extent, and required treatment of his medi c a l problems, and expressly announced to Jones that it considered those factors in imposing every sentence. The court, however, expressed its concern regar din g Jo n e s ’s continued pattern of fraudulent behavior and observed that Jones was aware of the federal procedures and reporting requirements. After taking these factors into account, the court declined to impose consecutive revocation s e ntences – as it had been considering – and instead imposed concurrent sentences on each coun t w ithin the statutory maximum term of imprisonment and the advisory guideline range. Jones has not shown that the district court committed any error, much less error that is plain. See Jones , 484 F.3d at 792. Because Jones has not satisfied even the firs t p rong of plain error review, the district court’s judgment must stand. See Puckett , 129 S.Ct. at 1429. AFFIRMED.

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