* 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this opinion should not be published and is not precedent except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

May 1, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-10292

c/w No. 05-10573 

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCUS HARRIS,

Defendant-Appellant.

--------------------

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 3:04-CR-347-ALL-H

--------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Marcus Harris was sentenced to a 24-month term of

imprisonment following the revocation of a term of supervised

release imposed as part of a 1997 sentence for bank fraud. 

Harris timely moved for a reduction or correction of sentence

pursuant to FED. R. CRIM. P. 35(a) on the basis that the

applicable advisory Sentencing Guidelines range was 12-to-18

months, rather than the 24-to-30 months cited by the district

court at sentencing. The district court denied the Rule 35(a)
No. 05-10292

c/w No. 05-10573

-2-

motion, citing specific reasons for its selection of a 24-month

sentence. Harris appealed both the initial revocation sentence

and the district court’s denial of Rule 35(a) relief. 

Long after briefing was completed in this case, counsel

moved to withdraw and Harris moved to proceed pro se on appeal

based on Harris’s desire to raise additional arguments not

addressed in counsel’s briefs. Harris’s assertion of his right

of self-representation is untimely. See United States v. Wagner,

158 F.3d 901, 902 (5th Cir. 1998). Consequently, counsel’s

motion to withdraw, Harris’s motion to appeal pro se, and

Harris’s motion to file a supplemental appellate brief are

denied. 

Harris has abandoned his appeal of the denial of his Rule

35(a) motion by failing to brief the issue. See Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Harris argues

that the district court plainly erred by not specifically

addressing the 18 U.S.C. § 3553(a) factors during the sentencing

hearing and that his sentence is plain error because it was based

on incorrectly calculated advisory guidelines. 

To establish reversible plain error, Harris must identify a

clear or obvious error that affected his substantial rights. 

United States v. Olano, 507 U.S. 725, 731-37 (1993). Even if

Harris establishes these factors, we retain the discretion

whether to correct the error and will generally do so only if the

error “affects the fairness, integrity, or public reputation of
No. 05-10292

c/w No. 05-10573

-3-

judicial proceedings.” United States v. Castillo, 386 F.3d 632,

636 (5th Cir.), cert. denied, 543 U.S. 1029 (2004). 

The Government concedes that Harris’s sentence is the result

of a misapplication of the Sentencing Guidelines, but it contends

that the error did not affect his substantial rights. Harris’s

revocation sentence was within the three-year statutory maximum

sentence authorized upon revocation. See 18 U.S.C. §§ 1344,

3559(a)(2), 3583(e)(3). The district court’s stated reasons for

denying Harris’s Rule 35(a) motion make it clear that the court

would not have imposed a lesser sentence but for the Guidelines

miscalculation. 

Therefore, Harris has failed to demonstrate that his

revocation sentence constitutes reversible plain error. 

Moreover, because the 24-month sentence is within the statutory

maximum, it was not unreasonable. United States v. Boykin,

No. 05-50704, 2006 WL 616031 at *1 (5th Cir.), cert. denied,

127 S. Ct. 153 (U.S. Oct. 02, 2006) (unpublished). 

Counsel’s arguments concerning Harris’s original 1997

sentence are irrelevant to the instant appeal and are therefore

not addressed.

AFFIRMED. MOTIONS DENIED.