IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30561

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LARRY JAMES BIGELOW,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:05-CR-20133-3

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:*

Larry James Bigelow was convicted of distribution of cocaine base; he 

was sentenced to 96 months of imprisonment and four years of supervised 

release. Since starting his term of supervised release, Bigelow has admitted 

to multiple violations of the conditions imposed. Ultimately, the district court 

revoked supervised release and sentenced Bigelow to 36 months of 

imprisonment. See 18 U.S.C. § 3583(e)(3).

* 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

April 13, 2015

Lyle W. Cayce

Clerk

 

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No. 14-30561

Because there is no indication that the district court departed or varied 

upward from a lesser guidelines sentencing range, Bigelow argues that the 

district court found that he had committed a “Grade A” violation. Although it 

was alleged that Bigelow’s arrest for distribution of drugs constituted a Grade 

A violation, he asserts that he only admitted that he had been arrested on that 

charge and that the Government did not submit any evidence showing that he 

committed the offense. Therefore, Bigelow argues that the district court 

procedurally erred in finding that he committed a Grade A violation.

Bigelow concedes that he did not object in the district court on the 

procedural error grounds he raises on appeal and, therefore, plain error review 

applies. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).

Bigelow must show a clear or obvious error that affected his substantial rights. 

See Puckett v. United States, 556 U.S. 129, 135 (2009). We have discretion to 

correct such an error, but will do so only if it seriously affects the fairness, 

integrity, or public reputation of the proceedings. See id.

The revocation judgment lists Bigelow’s arrest for distribution of 

hydrocodone as one of his violations of the terms of his release, a Grade A 

violation. However, Bigelow admitted only that he was arrested on this charge 

and the Government did not present any evidence in support of the allegation. 

The district court sentenced Bigelow to 36 months of imprisonment, which was 

within advisory guidelines range for a Grade A violation but above the range 

of 21 to 27 months for the Grade B violations Bigelow did admit. Thus, we 

assume that the district court committed clear or obvious error that affected 

Bigelow’s substantial rights. See United States v. Mudekunye, 646 F.3d 281, 

289 (5th Cir. 2011). 

However, a finding that an error affected the defendant’s substantial 

rights does not automatically require that we exercise our discretion to correct 

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No. 14-30561

that error. See United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 

2012). Despite the many opportunities he received from the district court, 

Bigelow’s repeated violations demonstrate that he was unable or unwilling to 

abide by the terms of his supervision. In addition, the record shows that the 

probation officer first reported a possible violation to the district court less than 

six months after Bigelow began his supervised release term. See United States 

v. Davis, 602 F.3d 643, 650-51 (5th Cir. 2010). Further, the 36-month sentence 

did not exceed the available statutory maximum. Therefore, we conclude that 

affirming the district court’s sentence would not seriously affect the fairness, 

integrity or public reputation of judicial proceedings. See id.

AFFIRMED.

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 Case: 14-30561 Document: 00513003334 Page: 3 Date Filed: 04/13/2015