IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50336

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JAMIL CHERRY,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:06-CR-35-1

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

*

Jamil Cherry appeals his 24-month sentence imposed following revocation

of his supervised release. In 2006, he pleaded guilty to unlawfully possessing a

firearm following a felony conviction, in violation of 18 U.S.C. § 922(g)(1), and

was sentenced to 30 months’ imprisonment and three years’ supervised release.

His supervised release began in January 2008. In March 2010, Cherry pleaded

true to allegations of violating: conditions of his supervised release, by

repeatedly failing to report to the United States Probation Office (within 72

United States Court of Appeals

Fifth Circuit

F I L E D

April 4, 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. 10-50336

hours of his release and monthly thereafter); and Texas law, by possessing

marijuana and a controlled substance. The district court revoked his supervised

release and sentenced him within the two-year statutory maximum, see 18

U.S.C. §§ 924(a)(2), 3559(a)(3), 3583(e)(3), and within the range of 21 to 24

months’ imprisonment, as advised by advisory Sentencing Guidelines’ policy

statements. See TEX. HEALTH & SAFETY CODE § 481.115; TEX. PENAL CODE

§12.35(a); U.S.S.G. §§ 7B1.1(a), 7B1.4(a), (b)(3)(A), p.s.

As in district court, Cherry challenges the reasonableness of his sentence,

contending it is greater than necessary to achieve the sentencing goals of 18

U.S.C. § 3553. In that regard, Cherry maintains his sentence: should reflect his

violation of the trust of the court rather than punish him for his criminal

offenses; and should have been lowered to reflect the year he served in jail for

the State criminal offenses that triggered the revocation of supervised release.

Pre-Booker, sentences imposed upon revocation of supervised release were

upheld unless “in violation of the law or plainly unreasonable”. United States

v. Jones, 484 F.3d 783, 791 (5th Cir. 2007) (internal quotation marks omitted).

Following Booker, sentences are reviewed for reasonableness under the abuse-ofdiscretion standard. United States v. Mondragon-Santiago, 564 F.3d 357, 360

(5th Cir.), cert. denied, 130 S. Ct. 192 (2009). The question of which standard

applies to revocation of supervised release post-Booker has resulted in a circuit

split.

Finding a more deferential standard of review appropriate, our court held

recently that, post-Booker,the plainly-unreasonable standard is to be applied for

reviewing supervised-release revocation. United States v. Miller, No. 09-11063,

2011 WL 692988, at *1 (5th Cir. 1 Mar. 2011). Under this standard, we first

consider “whether the district court procedurally erred before we consider the

substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard”. Id. at *2 (citation and internal quotation marks omitted). “If a

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sentence is unreasonable, then we consider whether the error was obvious under

existing law.” Id.

Cherry does not assert procedural error. The district court’s refusal to

accede to Cherry’s request that he be credited for time served in jail was

consistent with the preference for consecutive sentences in Guidelines policy

statement § 7B1.3(f). E.g., U.S.S.G. § 7B1.3(f), p.s. (“Any term of imprisonment

imposed upon the revocation of . . . supervised release shall be ordered to be

served consecutively to any sentence of imprisonment that the defendant is

serving . . . .”). In the light of Cherry’s numerous violations of the conditions of

his supervised release, and his high criminal-history category, Cherry’s withinGuidelines sentence was not plainly unreasonable.

AFFIRMED.

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