UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 01-30025
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HAROLD A. ODOMES,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Louisiana (00-CR-20047) February 25, 2002
Before GARWOOD, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM*:
On October 2, 2000, Harold A. Odomes appeared in the United
States District Court at Lafayette, Louisiana for a two day jury
trial. Count 1 of Odomes’ indictment charged that on or about
December 4, 1997, Odomes did knowingly embezzle, purloin, steal and
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. convert to his own use, or the use of others, items of military
issue clothing valued at over $1,000, in violation of 18 U.S.C.
§ 641. Count 2 of the indictment charged the identical criminal
acts on December 21, 1997. On October 4, 2000, Odomes was found
guilty on all counts as charged in the indictment. The district
court sentenced Odomes on December 21, 2000, to a total term of ten
months imprisonment and to a three year term of supervised release.
Odomes now appeals his sentence claiming that the district court
imposed it under the mistaken assumption that it could not impose
a less onerous sentence.
BACKGROUND
Harold A. Odomes was indicted for two counts of theft of
government property in violation of 18 U.S.C. § 641. The
indictment alleged that Odomes stole various items of military-
issue clothing while employed as an equipment-issue clerk for the
Department of the Army. A jury found Odomes guilty of the charges.
In accordance with the Sentencing Guidelines, the Presentence
Report (“PSR”) assigned Odomes with a total offense level of 12.
Odomes had no criminal history points placing his criminal history
category at I. With a total offense level of 12 and a criminal
history category of I, the Sentencing Guidelines provided for a
range of imprisonment of 10 to 16 months. U.S.S.G. Ch. 5, Pt. A
(Sentencing Table). As explained in the PSR, however, because the
range of imprisonment was in Zone C of the Sentencing Table, the
2 minimum term of imprisonment could be satisfied under § 5C1.1(d) by
either (1) a sentence of imprisonment; or (2) a sentence of
imprisonment that included a term of supervised release with a
condition that substituted community confinement or home detention
for imprisonment, provided that at least one-half of the minimum
term was satisfied by imprisonment. U.S.S.G. § 5C1.1(d)(1)-(2).
At sentencing, Odomes stated that he had no objections to the
PSR. In response to the district court’s question as to whether
Odomes had anything to say in mitigation of the sentence, Odomes
stated that he accepted blame for the crime and requested that the
district court be “as lenient as possible.” Odomes’ counsel also
stated that Odomes had four minor children that would have to be
placed with various relatives if Odomes was incarcerated as covered
in the PSR. Neither Odomes nor his counsel, however, requested the
district court to impose a split sentence of imprisonment and
community confinement or home detention pursuant to § 5C1.1(d)(2).
The district court also did not mention the availability of a
split sentence under § 5C1.1(d)(2), but it did express that it was
“keenly aware” of Odomes’ responsibilities as a parent and that it
was concerned about what was going to happen to Odomes’ children
while Odomes was in prison. However, the district court
additionally stated that it viewed Odomes’ offense very seriously
and that his action had to have a consequence. The district court
then said: “I’m going to give you the lowest sentence that I can
3 give you under the Sentencing Commission Guidelines, and that’s ten
months.”
The district court further communicated its concern for
Odomes’ children during Odomes’ incarceration, but stated that
“under the guidelines there’s really no alternative.” The district
court again stated that Odomes’ offense was “not a little thing”
and that the district court wanted to make sure that others would
be deterred from committing a similar offense. In addition to
imposing a 10-month sentence, the district court imposed a three-
year term of supervised release and a $200 special assessment. The
10-month period of imprisonment began on January 22, 2001.
DISCUSSION
Odomes argues that the district court abused its discretion in
sentencing him to 10 months in prison because it erroneously
concluded that it was not authorized to impose any other sentence
than the 10-to-16-month sentence set forth in the PSR. Odomes
contends that the district court failed to recognize the
alternative of a split sentence of imprisonment and home detention
allowed by § 5C1.1(d)(2). Odomes consequently asserts that his
sentence should be vacated and that he should be resentenced.
This Court reviews a trial court’s interpretation of the
Sentencing Guidelines de novo and its factual findings for clear
error. United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
Under 18 U.S.C. § 3742(a), a defendant may seek review of an
4 otherwise final sentence only if the sentence “(1) was imposed in
violation of law; (2) was imposed as a result of an incorrect
application of the [S]entncing [G]uidelines; or (3) is greater than
the sentence specified in the applicable guideline range . . . ; or
(4) was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.” 18 U.S.C. § 3742(a); see
United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995)
(explaining that § 3742(a) “permits a defendant to appeal for
review of his sentence in four circumstances”). Odomes appears to
be contesting the district court’s decision as an incorrect
application of the Sentencing Guidelines. However, a district
court’s refusal to depart from the guidelines can be reviewed by
this Court only if the district court based its decision upon an
erroneous belief that it lacked the authority to depart. United
States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir. 1999).
Therefore, before we may review Odomes’ case, we must come to
the conclusion that the district judge was unaware of the options
under the Guidelines and felt constrained to make its decision
based on this ignorance. There is very little case law, however,
involving how to review whether the district court’s decision,
regarding alternative forms of punishment, was informed. We find
some analogy in the present case, to cases in which the defendant
appeals a district court’s decision not to depart downward because
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UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 01-30025
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HAROLD A. ODOMES,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Louisiana (00-CR-20047) February 25, 2002
Before GARWOOD, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM*:
On October 2, 2000, Harold A. Odomes appeared in the United
States District Court at Lafayette, Louisiana for a two day jury
trial. Count 1 of Odomes’ indictment charged that on or about
December 4, 1997, Odomes did knowingly embezzle, purloin, steal and
* 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. convert to his own use, or the use of others, items of military
issue clothing valued at over $1,000, in violation of 18 U.S.C.
§ 641. Count 2 of the indictment charged the identical criminal
acts on December 21, 1997. On October 4, 2000, Odomes was found
guilty on all counts as charged in the indictment. The district
court sentenced Odomes on December 21, 2000, to a total term of ten
months imprisonment and to a three year term of supervised release.
Odomes now appeals his sentence claiming that the district court
imposed it under the mistaken assumption that it could not impose
a less onerous sentence.
BACKGROUND
Harold A. Odomes was indicted for two counts of theft of
government property in violation of 18 U.S.C. § 641. The
indictment alleged that Odomes stole various items of military-
issue clothing while employed as an equipment-issue clerk for the
Department of the Army. A jury found Odomes guilty of the charges.
In accordance with the Sentencing Guidelines, the Presentence
Report (“PSR”) assigned Odomes with a total offense level of 12.
Odomes had no criminal history points placing his criminal history
category at I. With a total offense level of 12 and a criminal
history category of I, the Sentencing Guidelines provided for a
range of imprisonment of 10 to 16 months. U.S.S.G. Ch. 5, Pt. A
(Sentencing Table). As explained in the PSR, however, because the
range of imprisonment was in Zone C of the Sentencing Table, the
2 minimum term of imprisonment could be satisfied under § 5C1.1(d) by
either (1) a sentence of imprisonment; or (2) a sentence of
imprisonment that included a term of supervised release with a
condition that substituted community confinement or home detention
for imprisonment, provided that at least one-half of the minimum
term was satisfied by imprisonment. U.S.S.G. § 5C1.1(d)(1)-(2).
At sentencing, Odomes stated that he had no objections to the
PSR. In response to the district court’s question as to whether
Odomes had anything to say in mitigation of the sentence, Odomes
stated that he accepted blame for the crime and requested that the
district court be “as lenient as possible.” Odomes’ counsel also
stated that Odomes had four minor children that would have to be
placed with various relatives if Odomes was incarcerated as covered
in the PSR. Neither Odomes nor his counsel, however, requested the
district court to impose a split sentence of imprisonment and
community confinement or home detention pursuant to § 5C1.1(d)(2).
The district court also did not mention the availability of a
split sentence under § 5C1.1(d)(2), but it did express that it was
“keenly aware” of Odomes’ responsibilities as a parent and that it
was concerned about what was going to happen to Odomes’ children
while Odomes was in prison. However, the district court
additionally stated that it viewed Odomes’ offense very seriously
and that his action had to have a consequence. The district court
then said: “I’m going to give you the lowest sentence that I can
3 give you under the Sentencing Commission Guidelines, and that’s ten
months.”
The district court further communicated its concern for
Odomes’ children during Odomes’ incarceration, but stated that
“under the guidelines there’s really no alternative.” The district
court again stated that Odomes’ offense was “not a little thing”
and that the district court wanted to make sure that others would
be deterred from committing a similar offense. In addition to
imposing a 10-month sentence, the district court imposed a three-
year term of supervised release and a $200 special assessment. The
10-month period of imprisonment began on January 22, 2001.
DISCUSSION
Odomes argues that the district court abused its discretion in
sentencing him to 10 months in prison because it erroneously
concluded that it was not authorized to impose any other sentence
than the 10-to-16-month sentence set forth in the PSR. Odomes
contends that the district court failed to recognize the
alternative of a split sentence of imprisonment and home detention
allowed by § 5C1.1(d)(2). Odomes consequently asserts that his
sentence should be vacated and that he should be resentenced.
This Court reviews a trial court’s interpretation of the
Sentencing Guidelines de novo and its factual findings for clear
error. United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
Under 18 U.S.C. § 3742(a), a defendant may seek review of an
4 otherwise final sentence only if the sentence “(1) was imposed in
violation of law; (2) was imposed as a result of an incorrect
application of the [S]entncing [G]uidelines; or (3) is greater than
the sentence specified in the applicable guideline range . . . ; or
(4) was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.” 18 U.S.C. § 3742(a); see
United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995)
(explaining that § 3742(a) “permits a defendant to appeal for
review of his sentence in four circumstances”). Odomes appears to
be contesting the district court’s decision as an incorrect
application of the Sentencing Guidelines. However, a district
court’s refusal to depart from the guidelines can be reviewed by
this Court only if the district court based its decision upon an
erroneous belief that it lacked the authority to depart. United
States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir. 1999).
Therefore, before we may review Odomes’ case, we must come to
the conclusion that the district judge was unaware of the options
under the Guidelines and felt constrained to make its decision
based on this ignorance. There is very little case law, however,
involving how to review whether the district court’s decision,
regarding alternative forms of punishment, was informed. We find
some analogy in the present case, to cases in which the defendant
appeals a district court’s decision not to depart downward because
of an erroneous belief that it lacked the authority to depart. In
5 such cases, in order to review the decision, “something in the
record must indicate that the district court held such an erroneous
belief.” United States v. Landerman, 167 F.3d 895, 899 (5th Cir.
1999). “[A] district court’s summary denial without explanation
does not indicate any such erroneous belief.” Valencia-Gonzales,
172 F.3d at 346 (citing United States v. Aggarwal, 17 F.3d 737, 745
(5th Cir. 1994)).
In the present case, the record does not clearly indicate
whether the district judge was aware of the options under §
5C1.1(d)(2). Though some concern was indicated by the district
court as to the time that Odomes would be incarcerated, the court
also indicated that it felt punishment was necessary. Odomes would
have this Court believe that the district court’s statements such
as “under the guidelines there’s really no alternative,” indicates
that the court was unaware of § 5C1.1(d)(2). However, the court’s
stern condemnation of Odomes’ crime, along with the fact that the
PSR included this alternative in its text, leads us to conclude
that the judge simply chose between alternate punishment schemes,
and was at all times aware of the options available to it.
Neither Odomes nor his counsel raised the possibility of
imposing an alternate punishment at the sentencing hearing and so,
we review the district court’s decision for plain error. Thames,
214 F.3d at 612; United States v. Flanagan, 87 F.3d 121, 124 (5th
Cir. 1996). This Court can grant relief under the plain error
6 standard if the error complained of is clear under current law and
affects substantial rights. United States v. Olano, 507 U.S. 725,
731-34 (1993). A court of appeals, however, should not exercise
its discretion to correct the error unless the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings. Id. at 527.
We hold that the district court’s choice of sentencing in this
case does not rise to the level which requires correction.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing, we conclude that the district court
did not abuse its discretion in sentencing Odomes to ten months of
imprisonment rather than the less onerous alternative under §
5C1.1(d)(2). We therefore AFFIRM the district court’s sentence.
AFFIRMED.