IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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-month term of imprisonment imposed

following the revocation of his supervised release. Jones argues that the

sentence of imprisonment is excessive for a non-violent offender who suffers from

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 violation of 18 U.S.C. §§ 1028(a)(7), 1344, and 1029(a)(2),

United States Court of Appeals

Fifth Circuit

F I L E D

September 2, 2011

Lyle W. Cayce

Clerk

 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.

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respectively. On each count, the district court sentenced Jones to eighty-seven

months of imprisonment and three years of supervised release, with the sentence

for each count to be served concurrently. 

1

Jones began his term of supervised release on August 20, 2010. On

September 30, his probation officer petitioned the district 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 imprisonment. 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 charges on

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 within 72 hours of release from

imprisonment and by committing the Georgia offenses. 

The district court held a revocation hearing on March 29. The court

informed Jones that his calculated advisory guideline range under the United

States Sentencing Guidelines (“Sentencing Guidelines”) was eighteen to twentyfour months of imprisonment on each count of conviction, and that the statutory 2

The district court also ordered Jones to pay restitution to several financial institutions 1

in the amount of $154,054.19, to make complete disclosure of his personal and business

finances and submit to an audit of his financial records, to refrain from incurring new credit

charges or opening additional lines of credit without approval from the probation office, and

to participate in an orientation and life skills program as directed by the probation office.

Under the advisory policy statements in Chapter 7 of the Sentencing Guidelines,

2

Jones’s violations were Grade B violations. See U.S.S.G. § 7B1.1(a)(2). Because Jones’s

criminal history category was V, his advisory guideline range was eighteen to twenty-four

months of imprisonment on each count of conviction. See U.S.S.G. § 7B1.4(a).

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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 further informed Jones that it

could reimpose supervised release of up to thirty-six months as to 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 explained the

reasons for his failure to report 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

that the court impose a sentence it felt was appropriate, order the last six

months to be served on home confinement, 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 restarttreatment

for his medical conditions.

The district court revoked 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 requirements.” His failure to report, in the

district court’s view, was “obvious and inexcusable,” though for mitigation

purposes, it accounted for the fact that Jones had sent a letter to a then-retired

Probation Officer requesting an extension to report. The court also explained

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that his health was a factor it had considered, as it did for every defendant.

Although it declined to impose consecutive revocation sentences, the district

court imposed the maximum advisory guideline sentence because of 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 the 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, 634 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 (5th Cir. 2007). To meet this standard of

review, Jones must first show (1) a forfeited error, (2) that is clear or obvious,

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 affects the fairness,

integrity, or public reputation of judicial proceedings. Id.

III.

After revoking a defendant’s supervised release, 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 in 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 does not

suggest that the district court erred, procedurally or otherwise, in fashioning the

 At the revocation hearing, Jones objected only to the district court’s reimposition of

3

supervised release under 18 U.S.C. § 3583(h). 

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24-month term of imprisonment. Instead, he argues that the sentence is too long

for a non-violent offender who has Stage IV Hodgkin’s lymphoma. He also

distinguishes the scale of his recent Georgia fraud convictions from those

underlying his 2002 federal convictions. 

Here, 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 “unreasonable” and “plainly

unreasonable” standards of review, a revocation sentence that was within the

advisory guideline range and the statutory maximum term of imprisonment. 

McKinney, 520 F.3d at 432; see also United States v. DeLeon-Fuentes, 310 F.

App’x 686, 687 (5th Cir. 2009) (affirming on plain error review revocation

sentence that fell within the statutory maximum term of imprisonment and

within the range recommended 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 medical problems, and

expressly announced to Jones that it considered those factors in imposing every

sentence. The court, however, expressed its concern regarding Jones’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 sentences – as it had been

considering – and instead imposed concurrent sentences on each count within

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 first prong of plain error review, the district court’s judgment must stand. 

See Puckett, 129 S.Ct. at 1429.

AFFIRMED. 

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