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. 08-31017

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

VICKIE WRIGHT

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:06-CR-50135-17

Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.

PER CURIAM:*

Vickie Wright, federal prisoner # 13349-035, appeals the sentence imposed

after the revocation of her supervised release. Wright argues that the district

court violated her procedural due process rights when it revoked her supervised

release and sentenced her to an above-guidelines sentence of 24 months of

imprisonment. She argues that she was not served with the amended petition

charging a Grade B violation and another Grade C violation of her supervised

release. She does not contest that she was served with the original petition

United States Court of Appeals

Fifth Circuit

F I L E D

September 2, 2009

Charles R. Fulbruge III

Clerk
No. 08-31017

2

which charged her with four Grade C violations or that the amended petition

was written after she had been summoned and a hearing had been scheduled.

Wright did not object on procedural due process grounds in the district

court. Therefore, our review of the alleged procedural due process violation is

for plain error. See FED. R. CRIM. P. 52(b); United States v. Willis, 563 F.3d 168,

170-71 (5th Cir. 2009). Plain-error review involves the following four prongs:

First, there must be an error or defect that has not been affirmatively waived by

the defendant. Second, the error must be clear or obvious, i.e., not subject to

reasonable dispute. Third, the error must have affected the defendant’s

substantial rights. Fourth, if the above three prongs are satisfied, this court has

the discretion to correct the error only if it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” Puckett v. United States,

129 S. Ct. 1423, 1429 (2009) (internal quotation marks and citation omitted).

Assuming without deciding that Wright has met the first two prongs listed

above, Wright has nonetheless failed to demonstrate that any procedural due

process violation affected her substantial rights. Wright has not alleged the

existence of any evidence that she could have presented to the district court to

demonstrate that she lacked the criminal intent required to have committed the

Grade B violation. Wright has not shown that “the probability of a different

result is sufficient to undermine confidence in the outcome” of the district court

proceeding. United States v. Holmes, 406 F.3d 337, 365 (5th Cir. 2005).

Wright also argues that her sentence is unreasonable because it is based

in large part on the Grade B violation, which she argues was not subjected to a

meaningful challenge in the district court. The Grade B violation charged

Wright with committing a federal, state, or local crime involving passing a check

on a Spelman College account that was returned for insufficient funds and about

which the college disavowed any knowledge. 

A district court may revoke a term of supervised release upon finding, by

a preponderance of the evidence, that the defendant violated a condition of the
No. 08-31017

3

release. See 18 U.S.C. § 3583(e)(3); United States v. Hinson, 429 F.3d 114, 119

(5th Cir. 2005). This court reviews the district court’s factual findings

supporting the revocation of supervised release for clear error and its

determinations of law de novo. United States v. Alaniz-Alaniz, 38 F.3d 788, 790

(5th Cir. 1994). 

Wright did not stipulate to the Grade B violation. She denied having the

mens rea required for her actions to have been unlawful, and the district court

did not believe her. The PSR supports the district court’s finding that Wright

had demonstrated a pattern of criminal conduct similar to that charged in the

Grade B violation. The district court found that Wright should have suspected

that there was something very peculiar about that check in that she kept only

10 percent of proceeds and transferred the remaining amount to someone else.

The district court’s finding that Wright committed the Grade B violation is

plausible in light of the record and therefore is not clearly erroneous. See United

States v. Anderson, 560 F.3d 275, 283 n.18 (5th Cir. 2009). The decision to

revoke Wright’s supervised release was not an abuse of discretion. United States

v. McCormick, 54 F.3d 214, 219 & n.3 (5th Cir. 1995). 

Wright objected after the district court imposed the sentence. We have not

decided the appropriate standard of review for a sentence imposed upon

revocation of supervised release following United States v. Booker, 543 U.S. 220

(2005), and we decline to do so now. E.g., United States v. McKinney, 520 F.3d

425, 428 (5th Cir. 2008).

Although Wright’s 24-month sentence exceeded the advisory guideline

range of 12 to 18 months of imprisonment, the sentence did not exceed the twoyear statutory maximum sentence that could have been imposed upon revocation

of Wright’s supervised release. See § 3583(e)(3). We have routinely affirmed

revocation sentences exceeding the advisory range, even where the sentence

equals the statutory maximum. See United States v. Neal, 212 F. App’x 328,

330-31 (5th Cir. 2007); United States v. Jones, 182 F. App’x 343, 344 (5th Cir.
No. 08-31017

4

2006). Further, we have affirmed sentences representing greater deviations

from the advisory range than the sentence here. See United States v. Smith,

417 F.3d 483, 491-92 (5th Cir. 2005) (upholding departure from guidelines range

maximum of 41 months to 120 months); see also Neal, 212 F. App’x at 330-31

(upholding departure from guidelines range maximum of 14 months to 60

months). Consequently, Wright’s sentence is acceptable under both the former

“plainly unreasonable” and the Booker “unreasonableness” standards. See

McKinney, 520 F.3d at 428.

Wright did not object that the district court gave insufficient reasons for

imposing the 24-month sentence. Accordingly, review of that issue is also for

plain error. In unpublished opinions, this court has indicated that the scope of

18 U.S.C. § 3553(c)(2)’s applicability to revocation sentences is unsettled and,

thus, the failure by a district court to state specific reasons for selecting a

revocation sentence does not constitute error that is plain. See United States v.

Perez, 260 F. App’x 720, 723 (5th Cir. 2007), cert. denied, 128 S. Ct. 1907 (2008);

United States v. Cantrell, 236 F. App’x 66, 69 (5th Cir.), cert denied, 128 S. Ct.

454 (2007). Further, Wright does not argue that the lack of sufficient reasons

makes meaningful appellate review impossible and does not explain how the

outcome of her case might have been different had the district court provided a

more thorough verbal explanation for its choice of sentence. See United States

v. Mondragon-Santiago, 564 F.3d 357, 364-65 & n.6 (5th Cir. 2009). The

judgment of the district court is AFFIRMED.