# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

- 31035 Summary Calendar

**United States of America,**
Plaintiff

— Appellee **,**

versus
**Earl M. Scott,**
Defendant

— Appellant

**.**

Appeal from the United States District Court for the Western District of Louisiana USDC No. 3:06

- CR

- 30043

- 5

Before **King, Smith,** and **Wilson,** Circuit Judges

**. Per Curiam**  **:** * At a revocation hearing, t he district court determined that Earl Scott had committed five Grade C violations of supervised release (“SR”) , so it sentenced him to a 28

- month term of imprisonment. Later that day, upon realizing that Scott had not been given the opportunity for allocution, the court conducted another proceeding , allowed Scott to allocut e , and gave

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opin

ion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 14, 2020 Lyle W. Cayce Cle rk Case: 19-31035 Document: 00515563189 Page: 1 Date Filed: 09/14/2020No. 19

- 31035

2 Scott’s counsel and the gov e rnment’s attorney an opportunity to speak. The court did not change the sentence

. Scott maintains that the district court erred by failing to permit him the opportunity for allocution. As he concedes, because he did not object in the district court, our review is for plain error. See United States v. Reyna , 358 F.3d 344, 350 (5th Cir. 2004) (en banc). To demonstrate plain error, Scott must show , inter alia , a forfeited error that is clear or obvious. See Puckett v. United States , 556 U.S. 129, 135 (2009). “Under the law of this Circuit, the right to allocution applies at sen

tencing following revocation of [SR] .” Reyna , 358 F.3d at 347. Here, how

ever, b ecause Scott was allowed to alloc u t e during the second pro ceeding, there was no clear or obvious error. See United States v. Delgado , 256 F.3d 264, 279 (5th Cir. 2001). Further, to the extent that Scott asserts that the district court erred by not giving his counsel and the g overnment’s attorney the opportunity to speak regarding his sentenc e , assuming arguendo that there was error, it was corrected at the second procee ding. See id. Challenging the second proceeding, Scott assert s that the court was required to vacate the sentence it had imposed before it conducted another proceeding ; however, h e has not cited to authority that establishes such a requirement. Scott di d not object at either proceeding, and w e will not ordi

narily find plain error in the absence of controlling precedent or where the appellant’s theory would require the extension of existing precedent. See United States v. Evans , 587 F.3d 667, 671 (5th C ir. 2009). Scott’s contention that the second proceeding was a “meaningless for mality,” United States v. Sparrow , 673 F.2d 862, 865 (5th Cir. 1982) (inter

nal quotation marks and citation omitted) , also fails. Co ntrary to Scott’s assertion, it is appa rent from the record that he completed his allocution with out interference from the district court, which explained its sentencing decision in terms that were responsive to the points made by Scott during his allocution. Further, as the court made no “caustic response,” th e instant Case: 19-31035 Document: 00515563189 Page: 2 Date Filed: 09/14/2020No. 19

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3 mat ter is easily distinguished from Sparrow

. Id.
As for the decision to impose a 28

- month revocation sentence, Scott raises several procedural challenges. Once again, w e review for plain error because Scott did not object in the district court. See United States v. White

law , 580 F.3d 256, 259 (5th Cir. 2009). Viewing the district court’s statements in context, the record is, at best, equivocal as to whether the court believed that the applicable policy

state ments req uired the revocation of SR or whether the court believed that the sentencing range of 8 to 14 months of imprisonment recom mended by U.S.S.G. § 7B1.4(a), p.s., did not account for situations, such as Scott’s, in which a defendant has committed multiple SR violations of the same grade

. A n equivocal record cannot amount to clear or obvious error, so Scott cannot prevail under the plain

- error standard. See id. at 259

− 60.
Scott’s contention that the district cou rt failed to provide a sufficient basis for imposing a sentence above the range of 8 to 14 months also fails under the plain

- error standard. Although the district court mostly referred to the 28

- month sentence as an upward “departure,” where a sentence is “reasonable under the totality o f the relevant statutory factors,” the specific characterization as a departure or variance is irrelevant. United States

v. Brantley , 537 F.3d 347, 349 (5th Cir. 2008). Therefore, Scott cannot show that his substantial rights were affected as a result of the failure to charac

terize the sentence properly

. See id.
Scott a ver s that the district court erred because it did not consider the factors of 18 U.S.C. § 3553(a) in determining his sentence. Although it is true that the court made no explic it reference to § 3553(a) or to its sen tencing considerations, th at alone does not establish clear or obvious error because “[i]mplicit consideration of the § 3553 factors is sufficient.” United States v. Teran , 98 F.3d 831, 836 (5th Cir. 1996). The dis trict court did not err by tak ing into account Scott’s numerous SR violations, see United States v. Headrick , 963 F.2d 77 7 , 782 (5th Cir. 1992), and our review of the record Case: 19-31035 Document: 00515563189 Page: 3 Date Filed: 09/14/2020No. 19

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4 satisfies us that the court implicitly considered the § 3553 (a) factors; thus, Sc ott has not shown clear or obvious procedural error. See Whitelaw , 580 F.3d at 2 63

− 6 4 ; Teran , 98 F.3d at 836. Further, Scott fails to meet the plain

- error standard for the additional reason that he has not shown that his substantial rights were affected, as nothing in the record suggests that an explicit statement of consideration of the § 3553(a) factors would have re

sulted in a lesser sentence

. See Whitelaw , 580 F.3d at 264

− 65

. Finally, we turn to Scott’s challenge to the substantive reasonableness

o f his sentence. Despite the lack of an objection, we treat this issue as pre

served. See Hol guin

- Hernandez v. United States , 140 S. Ct. 762, 766

− 67 (2020). The substantive reasonableness of a revocation sentence is reviewed for abuse of discretion in light of the totality of the circumstances, with the additional requirement that any error be plainly unreasonable. See United States v. Warren , 720 F.3d 321, 332 & n.2 (5th Cir. 2013). Scott has not shown that his sentence is substantively unreasonable. His contention that a 28

- month sentence is inappropriate given his Grade C SR violations amounts to nothing more than a mere disagree ment with th e district court’s weighing of the sentencing considerations , which is insuffi ci

ent to warrant reversal under our deferential standard of review. See id.

at 332. Although the s entence exceeds the policy

- statement range, it is within the statutory maxim um . “We have ro utinely affirmed revo cation sen

tences exceeding the advisory range, even where the sentence equals the statutory maximum.” Id. (interna l quotation marks and citation omitted).

**AFFIRMED**

. Case: 19-31035 Document: 00515563189 Page: 4 Date Filed: 09/14/2020