United States v. Napoleon

* 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this opinion should not be published and is not precedent except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
June 6, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50374
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY BRYAN NAPOLEON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:05-CR-392
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Anthony Bryan Napoleon appeals a twelve-month sentence imposed
by the magistrate judge pursuant to 18 U.S.C. § 3401(a) following
Napoleon’s guilty plea to stealing Government property valued at
less than $1000. Napoleon appealed to the district court, which
affirmed the sentence.
Napoleon argues that his sentence must be vacated because
it is above the advisory sentencing Guidelines range, the
magistrate judge stated in writing that the sentence was within the

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advisory Guidelines range, and the magistrate judge offered no
reasons for selecting the sentence. Napoleon argues that the
district court erred on appeal by supplying sentencing reasons for
the magistrate judge.
As Napoleon did not object to the lack of sentencing reasons,
the erroneous statement that the sentence was within the advisory
Guidelines range, or the imposition of a non-Guideline sentence, we
review his contentions for plain error. United States v. Olano,
507 U.S. 725, 731-37 (1993); see United States v. Akpan, 407 F.3d
360, 378 (5th Cir. 2005). The magistrate judge plainly erred by
failing to supply reasons for its selection of Napoleon’s sentence
and in stating that the sentence imposed was within the advisory
Guidelines range.
In determining whether a sentence should be vacated and the
case remanded for re-sentencing, this court has at times applied an
objective test—whether “the trial judge could reinstate the same
sentence.” United States v. Ravitch, 128 F.3d 865, 869 (5th Cir.
1997) (quotations omitted). At other times, this court has applied
a subjective test—“whether the defendant can show a reasonable
probability that, but for the district court’s misapplication of
the Guidelines, he would have received a lesser sentence.” United
States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005); see also
United States v. Jones, 444 F.3d 430, 436-38 (5th Cir.), cert.
denied, 126 S. Ct. 2958 (2006). Regardless of which analysis is
the appropriate one, Napoleon’s sentence should not be vacated.

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The magistrate judge could reasonably enter the same sentence on
remand, and there is no indication in the record that had the
magistrate judge been apprised that the sentence imposed was above
the advisory Guideline range, the magistrate would have chosen a
lesser sentence.
AFFIRMED.

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