USA v. Francis Comb, No. 10-10175 (5th Cir. 2010)
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Case: 10-10175 Document: 00511307335 Page: 1 Date Filed: 11/30/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-10175 Summary Calendar November 30, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FRANCIS HAROLD COMBS, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:09-CR-81-1 Before REAVLEY, DENNIS, CLEMENT, Circuit Judges. PER CURIAM:* Francis Harold Combs appeals the 24-month sentence imposed following the revocation of his supervised release. He complains that the district court improperly considered the factors of 18 U.S.C. § 3553(a)(2)(A) in imposing his sentence because sub-section (a)(2)(A) is not among the provisions of § 3553 that 18 U.S.C. § 3583(e) directs courts to weigh in fashioning a revocation sentence. Because Combs general objection to the sentence being unreasonable failed to adequately apprise the district court of the particular claim he now pursues on * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 10-10175 Document: 00511307335 Page: 2 Date Filed: 11/30/2010 No. 10-10175 appeal, we review Combs sentence for plain error. See United States v. Dunnigan, 555 F.3d 501, 506 (5th Cir. 2009). To the extent Combs claims that the district court s written Judgment of Revocation and Sentence reflects a basis for the district court s determination that is different than the district court s reasons announced at sentencing, our review of the record reveals no such inconsistency. Therefore, Combs had adequate opportunity to consider, comment on, and object to the reasonableness of the district court s sentence. See United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). At the time Combs was sentenced, this circuit s law did not clearly establish that a district judge could not consider the § 3553(a)(2)(A) factors in reaching a decision on a revocation sentence, and decisions of the other federal circuits on this issue remain at odds. See United States v. Rodriguez, 369 F. App x 608 (5th Cir. 2010); compare United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006), with United States v. Lewis, 498 F.3d 393, 399 (6th Cir. 2007). Therefore, Combs cannot show that the district court plainly erred in considering the factors of § 3553(a)(2)(A). See United States v. Salinas, 480 F.3d 750, 759 (2007) ( Because this circuit s law remains unsettled and the other federal circuits have reached divergent conclusions on this issue, . . . Salinas cannot satisfy the second prong of the plain error test that the error be clear under existing law. ). Accordingly, the Government s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. Government s alternative motion for an extension of time is DENIED. 2 The
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