* 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. 07-51349

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

YANCY CALHOUN

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 5:07-CR-526-ALL

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Yancy Calhoun appeals his sentence following the district court’s

revocation of his thirteen concurrent terms of supervised release. We hold that

Calhoun’s sentence was not unreasonable, and therefore we AFFIRM the district

court. 

In 1994, Calhoun pleaded guilty in the United States District Courtfor the

District of Massachusetts to a twenty-five-count indictment, including thirteen

drug offenses and twelve unlawful-use-of-communication-facility offenses.

United States Court of Appeals

Fifth Circuit

F I L E D

August 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-51349

1 When the Massachusetts district court sentenced Calhoun, it reduced Calhoun’s

criminal history category from IV to II. Even if we assume Calhoun’s criminal history category

2

Calhoun was sentenced to thirteen concurrent terms of 188 months’

imprisonment on all drug counts,to be followed by concurrent supervised release

terms of five years on five of the drug counts, and four years on eight of the drug

counts. After being released from prison, Calhoun violated the terms of his

supervised release. Jurisdiction was properly transferred to and accepted by the

United States District Courtfor the Western District of Texas. The district court

revoked Calhoun’s supervised release, and sentenced him to thirteen consecutive

terms of 2.3 months’ imprisonment(thirty months total) and fifty-seven months’

supervised release. 

On appeal, Calhoun contends that his total sentence, including

imprisonment and supervised release, was unreasonable because it overstated

the seriousness of his supervised-release violations, and it failed to account for

the “positive strides he had made.” Calhoun also contends that the district court

did not refer to any of the sentencing factors in 18 U.S.C. § 3553(a) (2006) when

pronouncing his sentence. We will address in turn each of Calhoun’s arguments.

Before United States v. Booker, 543 U.S. 220 (2005), this court would

uphold a sentence imposed after revocation of supervised release “‘unless it [was]

in violation of the law or plainly unreasonable.’” United States v. Hinson, 429

F.3d 114, 119-20 (5th Cir. 2005) (quoting United States v. Gonzalez, 250 F.3d

923, 925 (5th Cir. 2001)). In Booker, the Supreme Court directed courts of

appeals to “review sentencing decisions for unreasonableness.” Booker, 543 U.S.

at 264. Because Calhoun’s sentence passes muster under either standard, we

need not decide which standard of review governs sentences imposed upon

revocation of supervised release. See Hinson, 429 F.3d at 119-20.

Calhoun first argues that his total prison sentence of thirty months is

unreasonable. We disagree. Each of the thirteen 2.3-month sentences Calhoun

received was below the advisory sentencing guidelines range.1 See 18 U.S.C. §
No. 07-51349

is category II, the guidelines recommend a term of imprisonment of four to ten months on each

count. The lowest sentence in that range is greater than the 2.3-month sentence Calhoun

received on each count.

2The provision that now governs supervised release following revocation, 18 U.S.C. §

3583(h) (2006), requires that the reimposed term of supervised release “not exceed the term

of supervised release authorized by statute for the offense that resulted in the original term

of supervised release, less any term of imprisonment that was imposed upon revocation.” §

3583(h). Calhoun’s statute of conviction authorized a maximum of sixty months’ supervised

release. Calhoun contends that after sentencing him to a total of thirty months’ imprisonment,

the district court should have sentencedhim tono more thanthirty months’ supervised release.

The Government argues that because each individual count carried a prison term of only 2.3

months, the district court properly imposed fifty-seven months’ supervised release. However,

section 3583(h) “applies only to cases in which [the] initial offense occurred after the effective

date of [subsection (h)], September 13, 1994.” Johnson v. United States, 529 U.S. 694, 702

(2000). Where the initial offense occurred before September 13, 1994, 18 U.S.C. § 3583(e)(3)

(1988) governs. Calhoun pleaded guilty to all of his initial offenses on March 22, 1994.

Accordingly, section 3583(e)(3) applies to the present case, and we need not decide which party

properly calculated Calhoun’s supervised release under § 3583(h). See id. at 702. 

3We have held it is not unconstitutional to apply Johnson retroactively. United States

v. Martinez, 496 F.3d 387, 390 (5th Cir. 2007).

3

3583(e) (2006); U.S.SENTENCINGGUIDELINESMANUAL § 7B1.4 (2007). Moreover,

the district court had authority to impose consecutive terms of imprisonment

after it revoked the concurrent terms of Calhoun’s supervised release. See 18

U.S.C. § 3584(a) (2006); Gonzalez, 250 F.3d at 926-27. Accordingly, we hold that

Calhoun’s total sentence of thirty months’ imprisonment was not unreasonable.

Calhoun next challenges his sentence of fifty-seven months’ supervised

release. Under 18 U.S.C. § 3583(e)(3) (1988), a district court may

revoke a term of supervised release and require the person to serve

in prison all or part of the term of supervised release without credit

for time previously served on postrelease supervision, if it finds by

a preponderance ofthe evidence thatthe person violated a condition

of supervised release . . . .

2

In Johnson v. United States, 529 U.S. 694 (2000), the Supreme Court held that

18 U.S.C. § 3583(e)(3) (1988) authorized district courts to reimpose supervised

release. Johnson, 529 U.S. at 704, 713.3 Thus, the district court did not act

unreasonably by revoking Calhoun’s sentence and reimposing supervised release

for a term of fifty-seven months.
No. 07-51349

4

Finally, Calhoun argues that the district court failed to articulate

expressly the § 3553(a) factors when it imposed his sentence. After finding that

a defendant has violated a condition of supervised release, the district court

must consider the § 3553(a) factors in determining the sentence to be imposed.

Gonzalez, 250 F.3d at 929. We presume that “‘district courts know the

applicable law and apply it correctly,’” and we believe that “‘Congress never

intended . . . for sentencing to become a hyper-technical exercise devoid of

common sense.’” Id. at 930 (quoting United States v. Johnson, 138 F.3d 115, 119

(4th Cir. 1998)). Thus, “‘[i]mplicit consideration of the § 3553[(a)] factors is

sufficient.’” Id. (quoting United States v. Teran, 98F.3d 831, 836 (5th Cir. 1996)).

After reviewing the sentencing transcript, we hold that the district court

implicitly considered the § 3553(a) factors in sentencing Calhoun. The district

court heard the well-articulated arguments of both Calhoun and the Government

before imposing Calhoun’s sentence. See Gonzalez, 250F.3d at 930. Specifically,

the court heard arguments concerning Calhoun’s criminal history, his prompt

return to drug crime following his initial prison term, his lack of respect for the

law, the availability of prison drug-abuse programs and how they could benefit

Calhoun, and the need to adequately deter Calhoun from drug crime in the

future. See § 3553(a). Operating under the presumption that the district court

knows and correctly applies the law, and absent a contrary indication in the

record, we find that the district court sufficiently considered and correctly

applied the § 3553(a) factors in sentencing Calhoun.

We conclude that Calhoun’s total sentence of thirty months’ imprisonment

followed by fifty-seven months’ supervised release was not unreasonable, and

thatthe district courtimplicitly considered the § 3553(a) factors when itimposed

Calhoun’s sentence.

AFFIRMED.