USA v. Kevin Brown, No. 11-50178 (5th Cir. 2011)
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Case: 11-50178 Document: 00511603722 Page: 1 Date Filed: 09/15/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 11-50178 Summary Calendar September 15, 2011 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. KEVIN WAYNE BROWN, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 1:07-CR-91-1 Before BENAVIDES, STEWART and CLEMENT, Circuit Judges. PER CURIAM:* Kevin Wayne Brown appeals the 18-month sentence imposed by the district court following the revocation of his supervised release. Brown argues that the term of imprisonment, which was outside of the advisory guidelines range of six to 12 months, was unreasonable. This court recently determined that revocation sentences are ordinarily reviewed under a plainly unreasonable standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011), petition for cert. filed (May 27, 2011) (No. 10* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50178 Document: 00511603722 Page: 2 Date Filed: 09/15/2011 No. 11-50178 10784). We review Brown s sentence, however, for plain error because he failed to object to his sentence in the district court. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). Because the 18-month sentence Brown received on revocation is not greater than the term authorized by statute, it is clearly legal. United States v. Pena, 125 F.3d 285, 288 (5th Cir. 1997). We have consistently upheld revocation sentences exceeding the guidelines range but not exceeding the statutory maximum. See, e.g., Whitelaw, 580 F.3d at 265; United States v. Jones, 484 F.3d 783, 791-93 (5th Cir. 2007). Brown essentially asks this court to substitute his view of what an appropriate sentence would be for that of the district court, which we will not do. See Gall v. United States, 552 U.S. 38, 51 (2007). Brown has not shown plain error. See Puckett v. United States,129 S. Ct. 1423, 1429 (2009). AFFIRMED. 2
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