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. 09-60163

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOHNNY BRADBERRY,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:05-CR-77-2

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Johnny Bradberry appeals the 60-month sentence imposed upon his

revocation of probation for his conviction of conspiracy to possess with the intent

to distribute less than 50 kilograms of cocaine. Bradberry argues that his

sentence is unreasonable because the district court considered his arrest record

and contempt charges in violation of U.S.S.G. §§ 4A1.2 and 4A1.3, the court

failed to provide adequate reasons for the sentence, the extent of the deviation

from the recommended range is significant, and the district court improperly

United States Court of Appeals

Fifth Circuit

F I L E D

December 17, 2009

Charles R. Fulbruge III

Clerk
No. 09-60163

2

considered a factor of which Bradberry was not provided advance notice.

Bradberry also argues that his due process rights were violated because the

sentence was predetermined by the district court.

Bradberry did not argue before the district court that the court was barred

from considering his arrest record or contempt charges. Therefore, review is

limited to plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). 

To show plain error, Bradberry must show a forfeited error that is clear or

obvious and that affects his substantial rights. See Puckett, 129 S. Ct. at 1429.

If the appellant makes such a showing, this court has the discretion to correct

the error but only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id. There are no binding Sentencing

Guidelines for revocation of probation or supervised release. United States v.

Headrick, 963 F.2d 777, 780-82 (5th Cir. 1992). Rather, the Sentencing

Guidelines include non-binding policy statements concerning revocations.

See Guidelines Manual Ch. 7, Pt. A and Pt. B, intro. comment. Bradberry’s

argument that the district court improperly considered his arrest record and

contempt charges is without merit because it is not clear that the prohibitions

listed under §§ 4A1.2 and 4A1.3 apply to sentences imposed upon revocation of

probation. The court did not impose an upward departure under § 4A1.3. See

United States v. Mathena, 23 F.3d 87, 94 n.13 (5th Cir. 1994). 

The district court provided adequate reasons for the imposition of

Bradberry’s sentence. The court reflected on Bradberry’s criminal history, his

numerous violations of probation, and his contempt for the probation office. The

court’s statement is sufficient and does not constitute plain error. See United

States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996). Moreover, the district court

considered the Guidelines or policy statements of Chapter 7 before determining

that the facts of the instant case warranted a sentence of 60 months.

Bradberry’s sentence, while in excess of the 5-11 month range indicated by the

policy statements, was within the 60-month statutory maximum term of
No. 09-60163

3

imprisonment that the district court could have imposed. See 18 U.S.C.

§§ 3559(a), 3565(a); 21 U.S.C. §§ 841, 846.

Bradberry received adequate notice of all alleged violations but for the

positive marijuana test. The district court’s reasons for the imposition of

Bradberry’s sentence was based on several factors, even excluding the positive

marijuana test. Finally, it is unclear that the district court violated Bradberry’s

rights by cautioning him about the imposition of the statutory maximum

sentence should his probation be revoked. Therefore, Bradberry’s sentence is

neither unreasonable nor plainly unreasonable, and he has not shown plain

error. See Puckett, 129 S. Ct. at 1429; United States v. Hinson, 429 F.3d 114, 120

(5th Cir. 2005).

Accordingly, the judgment of the district court is AFFIRMED.