United States v. Custard

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 12, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-21036
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARSHALL RAY CUSTARD, JR.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-248
--------------------
Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Marshall Ray Custard, Jr., pleaded guilty to transportation
of a minor with intent to engage in criminal sexual activity,
for which he was sentenced to 21 months of imprisonment to be
followed by a three-year term of supervised release. He now
appeals the 24-month prison sentence imposed upon the revocation
of his term of supervised release.
Custard contends that the district court imposed a sentence
above the statutory maximum. He argues that, under the
principles announced in Blakely v. Washington, 542 U.S. 296

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No. 05-21036
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(2004), and United States v. Booker, 543 U.S. 220 (2005), the
maximum revocation sentence that could have been imposed in light
of his original sentence, based upon facts admitted by him, was
21 months, which was the top of the sentencing guideline range
found applicable by the district court. He argues that 21
months, rather than the former statutory maximum of 15 years
under 18 U.S.C. § 2423(a), governs the classification of his
underlying felony for purposes of revocation of supervised
release. See 18 U.S.C. §§ 3559(a), 3583(e).
Custard correctly acknowledges that his argument is
foreclosed by this court’s decision in United States v. Alfaro-
Hernandez, 453 F.3d 280, 281-82 (5th Cir. 2006), but he wishes to
preserve the argument for possible further Supreme Court review.
AFFIRMED.

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