USA vs. Curtis, (5th Cir. 1999)

Text

---

* District Judge of the Eastern District of Texas, sitting by designation. * * Pursuant to Fifth Circuit Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limit ed circumstances set forth in Fifth Circuit Rule 47.5.4. UNITED STATES COURT OF APPEALS FIFTH CIRCUIT No. 98-11088 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GRANT CURTIS, also known as Sealed, Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas (3:93-CR-207-P-ALL) Auigust 9, 1999 Before EMILIO M. GARZA and PARKER, Circuit Judges, and COBB, * District Judge.

PER CURIAM: ** Defendant James Curtis appeals the sentence imposed by the district court after he violated the terms of his probation. We affirm.

I Curtis pled guilty to one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 371. In June of 1994, the district court sentenced him to five years probation. Although the district court determined that the United States Sentencing Guidelines provided for a sentence of eighteen to twenty-four months imprisonment, it made a downward departure from the Guidelines in light of Curtis§ 3565. Curtis argues that applying the current version violates the Ex Post Facto Clause. § 3565 does not violate the Ex Post Facto Clause.

III Curtis also argues that the district court erred by not sentencing him according to the original Guideline range of eighteen to twenty-four months, which was set at his initial sentencing in 1994.

However, “there are no applicable [G]uidelines for sentencing after revocation of probation.” U nited States v. Teran , 98 F.3d 831, 8 36 (5th Ci r. 1996); s ee also U.S.S.G. Ch.7. Pt.A intro. comment.

Indeed, Curtis§ 3565, “the district court was not limited to the sentencing range available at the time of the init ial sentence.” I d. Accordingly, the district court did not err by refusing to sentence Curtis under the original Guideline range.

IV Finally, Curtis argues that his sentence is plainly unreasonable. Even where, as here, a district court§ 371 (providing for maximum sentence of five years). Accordingly, we find that the sentence handed down by the district court is not “plainly unreasonable.” V For these reasons we AFFIRM the sentence imposed by the district court.

1 This sentence is to be served consecutively to the fifty-one month sentence imposed by a federal court in New York, following Curtis§§ 3551-3559. S ee Pena , 125 F.3d at 286- 87

3 At oral argument, Curtis argued that the district court did not make a finding of fact that Curtis committed any criminal acts after the 1994 amendments to § 3565 became effective. However, the district court stated at t he sent encing hearing: § 3565 became effective. Therefore, the district court accepted as true the Government§ 3565 was in force. -3- § 3565 under the Ex Post Facto Clause. There, as here, the district court placed the defendant on probation before the 1994 amendments to § 3565. See id. at 15. There, as here, the district court revoked probation based on conduct committed after the 1994 amendments. S ee id. In F emale Juvenile , we rejected the defendant§ 3565 occurred after the amendment.§ 3565 became effective

---