IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-31229

Consolidated with 18-31230

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

EDWARD LEE DAUGHENBAUGH, 

 Defendant - Appellant

Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 2:06-CR-20060-1

USDC No. 2:18-CR-132-1

Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM:*

After Edward Lee Daughenbaugh violated federal criminal law and the 

terms of his supervised release by possessing child pornography, the district 

court ordered that the sentence on his new offense and the sentence on his 

supervised release revocation run consecutively. On appeal, Daughenbaugh 

 

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should not be published and is not precedent except under the limited circumstances 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

October 31, 2019

Lyle W. Cayce

Clerk

 Case: 18-31229 Document: 00515182330 Page: 1 Date Filed: 10/31/2019
No. 18-31229 c/w 18-31230

2

argues that his combined 15-year sentence is substantively unreasonable. 

Having concluded that Daughenbaugh has not rebutted the presumption that 

his sentence was reasonable, we AFFIRM.

I

In 2006, Daughenbaugh pled guilty to possession of child pornography 

and was sentenced to 84 months of imprisonment, to be followed by a lifetime 

term of supervised release. His supervision commenced in June 2012. In June 

2016, Daughenbaugh’s probation officer filed a petition for a summons and 

recommended revocation of supervised release based on an allegation that 

Daughenbaugh violated the terms of his supervised release by having 

unsupervised contact with minor children. The petition explained that, during 

a home visit, the probation officer found children aged two and four living in 

Daughenbaugh’s home.

Daughenbaugh admitted to the violation, and his term of supervised 

release was revoked. He was sentenced to one year and one day of 

imprisonment, to be followed by a lifetime term of supervised release. The 

special conditions of supervised release included provisions that prohibited 

Daughenbaugh from purchasing, possessing, or using cellular telephones with 

photographic or internet capabilities. Another special condition prohibited 

Daughenbaugh from possessing or viewing any image depicting sexually 

explicit conduct.

His second term of supervision commenced in February 2017. In May 

2018, the probation officer filed a petition for a warrant, alleging that 

Daughenbaugh violated the conditions of supervised release by possessing a 

cellular phone with internet capabilities and by possessing and viewing images 

depicting sexually explicit conduct. The petition stated that, on May 9, 2018, 

the probation officer found Daughenbaugh in possession of a cellular phone at 

 Case: 18-31229 Document: 00515182330 Page: 2 Date Filed: 10/31/2019
No. 18-31229 c/w 18-31230

3

his residence. The phone was found to have “approximately 38 videos depicting 

child pornography.”

Daughenbaugh was indicted in a separate case for the new offense of 

possession of child pornography. He pleaded guilty to the new offense, and he 

did not contest the allegations that he violated the conditions of his supervised 

release.

The district court bifurcated the revocation proceedings and the 

sentencing proceedings on the new conviction. On the new offense, the 

presentence report (PSR) calculated a guidelines range of 63 to 78 months; 

however, the statute mandated a minimum sentence of 10 years because 

Daughenbaugh had previously been convicted of the same offense. See 18 

U.S.C. § 2252A(b)(2). Therefore, the guidelines sentence became 120 months. 

See U.S.S.G. § 5G1.1(b). On the revocation, the advisory range was 4 to 10 

months of imprisonment. However, Daughenbaugh was also subject to a 

minimum term of five years of imprisonment on the revocation because of the 

nature of his underlying offense; thus, the guidelines sentence became 60 

months. See 18 U.S.C. §§ 2252A(a)(5)(B), 3583(k); U.S.S.G. § 7B1.4(b)(2).

At the sentencing hearing for the new conviction, Daughenbaugh 

acknowledged that he was subject to statutorily mandated terms of 

imprisonment. He argued that the court should exercise its discretion to order 

that the sentences imposed run concurrently. Daughenbaugh asserted that the 

new offense and the revocation involved the same conduct. He repeated this 

argument during sentencing on the revocation.

On the new offense, the district court imposed a sentence of 120 months 

of imprisonment, to be followed by a lifetime term of supervised release. 

Daughenbaugh did not object to the 120-month sentence.

 Case: 18-31229 Document: 00515182330 Page: 3 Date Filed: 10/31/2019
No. 18-31229 c/w 18-31230

4

On the revocation, the court imposed a sentence of 60 months and 

ordered the sentence to run consecutively to the sentence imposed on the new 

conviction. In imposing the sentence, the court noted that it had considered the 

relevant factors of 18 U.S.C. § 3553(a), particularly the nature and 

circumstances of the offense and the nature and characteristics of the 

defendant. The court observed that, although the policy statement indicated a 

term of imprisonment imposed in a revocation of supervised release for this 

type of offense “shall” run consecutively, the Guidelines were advisory and that 

the court was not bound by the language. Nevertheless, the court indicated 

that it believed the policy statements in the Guidelines were correct “in this 

instance,” noting that Daughenbaugh was a recidivist for the same offense. 

Daughenbaugh objected to the sentence imposed on revocation of supervised 

release. He filed timely notices of appeal in both cases. The appeals were 

consolidated.

II

Daughenbaugh argues that his combined 15-year sentence is 

substantively unreasonable and that the sentences should have been ordered 

to run concurrently.1 He asserts that a concurrent sentence would have 

achieved the sentencing goals of § 3553(a) and that the consecutive five-year 

term of imprisonment imposed on his revocation of supervised release is 

greater than necessary to satisfy the § 3553(a) factors.

 

1 Though Daughenbaugh initially indicates in his brief that he is appealing both 

sentences, his arguments are directed only at the sentence imposed on revocation of his 

supervised release. Daughenbaugh does not brief any challenge to the sentence imposed in 

connection with his new conviction and seeks only to have the revocation sentence vacated. 

Therefore, he has abandoned the appeal of the 120-month sentence, and we affirm the 

judgment in that case. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993); see also 

United States v. Pineda-Pineda, 743 F. App’x 547, 548 (5th Cir. 2018) (per curiam).

 Case: 18-31229 Document: 00515182330 Page: 4 Date Filed: 10/31/2019
No. 18-31229 c/w 18-31230

5

Revocation sentences are reviewed under 18 U.S.C. § 3742(a)’s “plainly 

unreasonable” standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir. 

2011). A within-guidelines, consecutive sentence is presumed to be reasonable.

United States v. Candia, 454 F.3d 468, 472–73 (5th Cir. 2006). A revocation 

sentence is substantively unreasonable where the district court did not take 

into account a factor that should have received significant weight, gave 

significant weight to an irrelevant or improper factor, or made a clear error in 

judgment when balancing the sentencing factors. United States v. Warren, 

720 F.3d 321, 332 (5th Cir. 2013).

Daughenbaugh’s challenge to the sentence is limited to its consecutive 

nature. He contends that the 60-month revocation sentence punishes the same 

conduct underlying the new conviction and that the sentences should therefore 

run concurrently. He further notes that his guidelines range would have been 

substantially lower without the statutorily mandated sentences and asserts 

that he would pose no danger to the community if he were released in 10 years 

at the age of 61.

His arguments are unavailing. Sentences imposed on revocation of 

supervised release and for new offenses are separate sentences imposed in 

separate criminal proceedings. See Johnson v. United States, 529 U.S. 694, 700 

(2000) (explaining that a sentence imposed following the revocation of 

supervised release is part of the penalty for the original conviction). A sentence 

imposed on revocation of supervised release punishes a breach of trust for 

violating the conditions of supervision; thus, it is distinct from the sentence 

imposed on the new offense. See United States v. Zamora-Vallejo, 470 F.3d 592, 

596 & n.6 (5th Cir. 2006); see also United States v. Ramirez, 264 F. App’x 454, 

458 (5th Cir. 2008) (per curiam).

 Case: 18-31229 Document: 00515182330 Page: 5 Date Filed: 10/31/2019
No. 18-31229 c/w 18-31230

6

The district court had the discretion to order that Daughenbaugh’s 

sentences be served consecutively. See United States v. Whitelaw, 580 F.3d 256, 

260 (5th Cir. 2009); see also 18 U.S.C. § 3584(a); U.S.S.G. § 7B1.3(f) cmt. n.4.

Additionally, the Guidelines provide that a revocation sentence should run 

consecutively to another sentence, even if both arose out of the same conduct, 

because a revocation sentence punishes a breach of trust rather than the 

criminal conduct. U.S.S.G. 7A, introductory cmt. ¶ 3(b); § 7B1.3(f) & cmt. n.4

(specifying that a term of imprisonment imposed upon revocation “shall run 

consecutively” to any other terms the defendant is serving).

Daughenbaugh’s consecutive 60-month sentence was within the range 

recommended by the policy statements. See 18 U.S.C. §§ 2252A(a)(5)(B), 

3583(k); U.S.S.G. § 7B1.4(b)(2). Daughenbaugh’s conclusory assertion that the 

resulting combined 15-year sentence is greater than necessary to satisfy the 

sentencing goals of § 3553(a) is insufficient to rebut the presumption of 

reasonableness attached to his within-guidelines revocation sentence. See 

Warren, 720 F.3d at 332; Candia, 454 F.3d at 472–73.2

AFFIRMED.

 

2 The Supreme Court recently held that a revocation of supervised release and 

imposition of the five-year mandatory minimum sentence pursuant to § 3583(k), 

based on judge-made findings by a preponderance of the evidence, violated due 

process and the right to a trial by jury. United States v. Haymond, 139 S. Ct. 2369, 

2373–85 (2019) (plurality opinion with one justice concurring in the judgment). But 

Daughenbaugh does not challenge his revocation sentence on this ground, possibly 

because it is doubtful that Haymond would be of any help to him. After all, unlike the 

defendant in that case, Daughenbaugh was charged separately for the underlying 

criminal conduct and was therefore afforded the opportunity to have a jury determine 

beyond a reasonable doubt whether he committed the latest offense. He instead chose 

to plead guilty.

 Case: 18-31229 Document: 00515182330 Page: 6 Date Filed: 10/31/2019