IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30336

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROBERT HAYES,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:02-CR-83-1

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Robert Hayes appeals the sentence imposed after revocation of supervised

release. His 24-month sentence was the statutory maximum sentence which was

below the recommended guidelines range of 33-41 months.

Hayes contends that the sentence was unreasonable because the court did

not select a sentence that properly balanced the objectives of punishment and

rehabilitation. He argues that imposition of the statutory maximum sentence

did not serve the purpose of rehabilitation and shows that the court did not

United States Court of Appeals

Fifth Circuit

F I L E D

November 3, 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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No. 11-30336

adequately consider mitigating factors (e.g., his health problems or his success

in completing rehabilitative programs). Hayes further asserts that the district

court wrongly based the sentence on “punishment,” a factor that is listed in 18

U.S.C. § 3553(a)(2), and barred from consideration by 18 U.S.C. § 3583(e) under

United States v. Miller, 634 F.3d 841, 844 (5th Cir), petition for cert. filed (May

27, 2011) (No. 10-10784). Because Hayes only offered a general objection in the

district court to the reasonableness of his sentence and did not object on the

specific grounds he raises on appeal, we review his arguments for plain error. 

United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); see also United States

v. LeBoeuf, 10-10849, 2011 WL 3279203, at * 2 (5th Cir. Aug. 1,

2011)(unpublished)(noting that a general objection to the reasonableness of a

revocation sentence does not preserve the argument that the district court

considered an improper sentencing factor).

Hayes’s contention that the district court improperly based his sentence

on “punishment” is unavailing. The record supports that revocation of Hayes’s

supervised release was mandated by § 3583(g) because he violated an express

condition of supervised release by being convicted in Louisiana state court of

possession of heroin with intent to distribute, i.e., a drug possession crime

punishable by more than one year. See § 3583(g). Section 3583(g) does not

expressly invoke the sentencing factors of § 3553(a), or the limits imposed by the

first clause of §3583(e). See § 3583(g); United States v. Giddings, 37 F.3d 1091,

1095 (5th Cir. 1994) (noting that a court need not consider § 3553(a) when

revocation is mandated by § 3583(g)). Thus, Hayes fails to show that it is “clear

or obvious” or “obvious under existing law” that a sentence imposed when

revocation is mandatory must be limited by § 3583(e). Cf. United States v.

Larison, 432 F.3d 921, 923 (8th Cir. 2006) (holding that the district court’s

sentencing decision was not constrained by the factors specifically enunciated

in § 3583(e) where revocation was mandated by § 3583(g)). 

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No. 11-30336

Hayes’s assertion that his sentence did not represent a proper evaluation

of various competing interests and did not properly account for mitigating

factors is without merit. The record reflects that the court considered the

competing sentencing objectives and concluded that a 24-month sentence

appropriately balanced those factors. The court acknowledged Hayes’s serious

health problems and specifically considered whether Hayes’s previous efforts at

rehabilitation warranted a lesser sentence. However, the court concluded that

Hayes’s history and characteristics outweighed his rehabilitative efforts and

justified the sentence imposed. To the extent that Hayes disagrees with the

weight that the court gave to the factors argued, his claim is unavailing; the

district court was permitted to use its judgment to weigh the relative importance

of each factor, and we may not reweigh those factors. See Gall v. United States,

552 U.S. 38, 51 (2007). 

The judgment of the district court is therefore AFFIRMED.

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