United States v. Ebone McAfee

0United States Court of Appeals
for the Fifth Circuit

No. 20-50236
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Ebone Jazmine McAfee, also known as Jazzy, also known as Ebone
Jasmine McAfee,

Defendant—Appellant,

consolidated with

No. 20-50238

United States of America,

Plaintiff—Appellee,

versus

Ebone Jazmine McAfee, also known as Jazzy,

Defendant—Appellant.

United States Court of Appeals
Fifth Circuit
FILED
December 18, 2020

Lyle W. Cayce
Clerk
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No. 20-50236
c/w No. 20-50238
2

Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:16-CR-162-1
USDC No. 7:11-CR-330-1

Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Ebone Jazmine McAfee appeals the sentences imposed on revocation
of her terms of supervised release pertaining to a 2012 conviction for
conspiracy to distribute and possess with intent to distribute cocaine base and
a 2016 conviction for distribution of cocaine base. At a combined revocation
hearing, the district court revoked supervised release and sentenced McAfee
to 24 months in prison in each case with the sentences to run concurrently.
Both sentences were above the applicable advisory range but not above the
statutory maximum term of imprisonment. No further term of supervised
release was ordered.
Generally, this court reviews a revocation sentence under the “plainly
unreasonable” standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011). Under that standard, this court first assesses whether the district
court committed a “‘significant procedural error.’” United States v. Fuentes,
906 F.3d 322, 325 (5th Cir. 2018) (quoting United States v. Warren, 720 F.3d
321, 326 (5th Cir. 2013)). If the sentence is procedurally sound, this court
reviews the substantive reasonableness of the sentence for an abuse of
discretion, examining the totality of the circumstances. Id.

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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McAfee argues that the revocation sentences were substantively
unreasonable because the district court gave significant weight to an
irrelevant or improper factor when upwardly departing and because the court
did not account for factors that should have received significant weight.
Because she did not raise these arguments in the district court, review is for
plain error. See Fuentes, 906 F.3d at 325. To demonstrate plain error,
McAfee must show a forfeited error that is clear or obvious and that affects
her substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If
she makes such a showing, this court has the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
The record does not clearly or obviously show that the district court
gave significant weight to an irrelevant or improper factor or failed to account
for factors that should have received significant weight. See Warren, 720 F.3d
at 332. The district court explained that it had reviewed the policy statements
contained in the Sentencing Guidelines and the applicable 18 U.S.C.
§ 3553(a) factors. The district court properly relied on the need to deter
criminal conduct, the need to protect the public from further crimes, and the
history and characteristics of the defendant when sentencing McAfee.
Furthermore, the district court was allowed to impose any sentence within
the appropriate statutory maximum term of imprisonment. See 18 U.S.C.
§ 3583(e)(3); Warren, 720 F.3d at 332. Thus, the district court did not plainly
err in imposing the revocation sentences. See Puckett, 556 U.S. at 135. The
judgments of the district court are AFFIRMED.
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