United States v. Stapleton

Opinion

Case: 24-10328 Document: 57-1 Page: 1 Date Filed: 12/09/2024

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals Fifth Circuit

No. 24-10328 Summary Calendar FILED ____________ December 9, 2024 Lyle W. Cayce

United States of America, Clerk

Plaintiff—Appellee,

versus

Kelly M. Stapleton,

Defendant—Appellant.

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Appeal from the United States District Court for the Northern District of Texas USDC No. 4:10-CR-157-1

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Before Smith, Stewart, and Duncan, Circuit Judges. Per Curiam: * Kelly M. Stapleton pleaded true to violating various conditions of his supervised release, including possessing a controlled substance. See 18 U.S.C. § 3583(g)(1). The district court imposed 10 months of imprisonment, to be followed by 20 years of supervised release. Stapleton appeals the reimposition of supervised release, contending for the first time that the

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-10328 Document: 57-1 Page: 2 Date Filed: 12/09/2024

No. 24-10328

district court impermissibly considered the seriousness of his underlying criminal offense when imposing his revocation sentence. See 18 U.S.C. §§ 3553(a)(2)(A) & 3583(c), (h).

Reviewing for plain error, we are unpersuaded by Stapleton’s argument because revocation was mandatory under § 3583(g), and we have held that district courts do not clearly err by considering a retributive factor at § 3553(a)(2)(A) when imposing a mandatory revocation sentence. See United States v. Illies, 805 F.3d 607, 609 (5th Cir. 2015); see also United States v. Garner, 969 F.3d 550, 553 n.12 (5th Cir. 2020). In any event, the challenged statement regarding the underlying offense is one brief remark, and Stapleton’s reliance on United States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015), is therefore misplaced. Here, the district court repeatedly commented on Stapleton’s history of noncompliance with the conditions of his supervised release and expressed its concern for protecting the public, suggesting that the challenged statement was merely an additional reason, and not a dominant factor, for the sentence. See 18 U.S.C. § 3553(a)(1) & (a)(2)(C); Rivera, 784 F.3d at 1017. In sum, Stapleton has not met his burden of establishing a clear or obvious error. See Puckett v. United States, 556 U.S. 129, 135 (2009).

AFFIRMED.