IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30968

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BRANDI ALYSHA PINNER,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:14-CR-5-1

Before DAVIS, JONES, and GRAVES, Circuit Judges.

PER CURIAM:*

In 2013, Brandi Alysha Pinner pleaded guilty to aiding and abetting the 

distribution of methamphetamine and was sentenced to 15 months of 

imprisonment and three years of supervised release. Pinner has appealed the 

district court’s judgment revoking her supervised release and sentencing her 

to 12 months of imprisonment. Pinner contends that the district court 

 

* 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

July 12, 2016

Lyle W. Cayce

Clerk

 Case: 15-30968 Document: 00513588407 Page: 1 Date Filed: 07/12/2016
No. 15-30968

2

improperly considered the factors listed in 18 U.S.C. § 3553(a)(2)(A) in 

determining her revocation sentence.

A properly preserved objection to a revocation sentence is reviewed 

under the plainly unreasonable standard. United States v. Warren, 720 F.3d 

321, 326 (5th Cir. 2013). However, because the instant objection was not 

asserted in the district court, our review is limited to plain error. See id. “To 

prevail on plain error review, a defendant must show that an error occurred, 

that the error was clear or obvious, and that the error affected his substantial 

rights.” United States v. Walker, 742 F.3d 614, 616 (5th Cir. 2014). If those 

factors are established, the decision to correct the forfeited error is within the 

court’s sound discretion. Id.

In determining whether to revoke a term of supervised release, the 

district court must consider the factors set forth in 18 U.S.C. § 3553(a)(1), 

(a)(2)(B)-(D), and (a)(4)-(7). 18 U.S.C. § 3583(e); see United States v. Miller, 

634 F.3d 841, 844 (5th Cir. 2011). “Missing from this list is § 3553(a)(2)(A), 

which allows a court to impose a sentence that reflects ‘the seriousness of the 

offense, to promote respect for the law, and to provide just punishment for the 

offense.’” Miller, 634 F.3d at 844 (quoting § 3553(a)(2)(A)). This court has held

that “[w]hen sentencing a defendant under § 3583(e), a district court may not 

consider § 3553(a)(2)(A) because Congress deliberately omitted that factor from 

the permissible factors enumerated in the statute.” Miller, 634 F.3d at 844. 

After Miller, this court clarified that a sentencing error occurs when an 

impermissible consideration is a dominant factor in the court’s revocation 

sentence, but not when it is merely a secondary concern or an additional 

justification for the sentence. See Walker, 742 F.3d at 616.

In setting forth its reasons at the revocation hearing, the district court 

first cited a permissible factor set forth in § 3553(a)(1), stating that “the history 

 Case: 15-30968 Document: 00513588407 Page: 2 Date Filed: 07/12/2016
No. 15-30968

3

and characteristics of the defendant” justify the above-guidelines one-year 

revocation sentence. The court went on to cite § 3553(a)(2)(A) before stating 

that Pinner’s “offenses are serious,” that she was, “as part of the revocation 

proceeding, receiv[ing] just punishment” of 12 months, and that her 

prevarications and inconsistent statements to the court and during the

investigation of her medical condition “justify a one-year sentence in order to 

promote respect for the law.” The court twice described the revocation sentence 

as “pure punishment” and stated that Pinner “will be punished for the 

violations and the inability to follow rules and the false information that she 

has supplied to this Court” regarding her medical condition. 

Even assuming that the district court plainly erred by making the 

§ 3553(a)(2)(A) considerations a dominant factor in imposing the revocation 

sentence and that this error affected Pinner’s substantial rights, this court is 

not required to correct the forfeited error. See Walker, 742 F.3d at 616. Under 

the fourth prong of plain-error review, this court “has the discretion to remedy 

the error—discretion which ought to be exercised only if the error seriously 

affects the fairness, integrity or public reputation of judicial proceedings.” 

United States v. Rivera, 784 F.3d 1012, 1018 (5th Cir.), reh’g denied, 797 F.3d 

307 (5th Cir. 2015) (internal quotation marks and citation omitted) (emphasis 

in original). “In analyzing the fourth prong, we look to the degree of the error 

and the particular facts of the case to determine whether to exercise our 

discretion.” United States v. Prieto, 801 F.3d 547, 554 (5th Cir. 2015) (internal 

quotation marks and citation omitted). “In the past, we have declined to 

remedy some errors that may have caused sentence increases.” Rivera, 

784 F.3d at 1018-19, n.3 (collecting cases).

“[T]he goal of revocation is to punish a defendant for violating the terms 

of the supervised release.” Miller, 634 F.3d at 843. The Sentencing Manual 

 Case: 15-30968 Document: 00513588407 Page: 3 Date Filed: 07/12/2016
No. 15-30968

4

contemplates a distinction “between punishment for the offense constituting 

the supervised release violation[] and sanctioning the violation itself.” Rivera, 

797 F.3d at 308-09. “Drawing a (very) fine line,” the Guidelines Manual states 

that “the revoking court should not sentence the defendant with an aim to 

punish the offense that constitutes the supervised release violation” but that 

“the district court is instead punishing the defendant’s breach of the court’s 

trust.” Rivera, 797 F.3d at 309. “[T]he Manual also states that ‘the nature of 

the conduct leading to the revocation [may] be considered in measuring the 

extent of the breach of trust.’ Id. (quoting U.S.S.G. Ch. 7, Pt. A, intro.

comment. (U.S. Sentencing Comm’n 2014)). 

In the instant case, the transcript of the revocation hearing indicates

that the district court was focused not on punishing Pinner for offenses alleged 

in the revocation petition, but upon sanctioning her for the breaches of trust 

exemplified by her repeated failures to comply with her supervised release 

conditions and her misrepresentations to the court. See Rivera, 797 F.3d at 

308-09. Although it may have erred in articulating the reasons for its 

determination, the district court was attempting to effectuate the appropriate 

goal of sanctioning Pinner’s supervised release violations and breaches of trust. 

See Miller, 634 F.3d at 843-44; Rivera, 797 F.3d at 308-09; U.S.S.G. Ch. 7, 

Pt. A, intro. comment. As the particular facts of this case thus indicate only a 

small degree of error that does not seriously affect the fairness, integrity, or 

public reputation of judicial proceedings, we will not exercise our discretion to 

remedy it. See Prieto, 801 F.3d at 554; Rivera, 784 F.3d at 1018-19. The 

judgment is AFFIRMED. 

 Case: 15-30968 Document: 00513588407 Page: 4 Date Filed: 07/12/2016