Unreported / Non-Citable
Background
Deandre Rashaun Hulbert appealed the sentence imposed after the district court revoked his supervised release. The district court classified his Texas assault offense under Texas Penal Code § 22.01(b)(2)(B) as a Grade A supervised-release violation under U.S.S.G. § 7B1.1(a)(1).
Hulbert argued that the assault was not a “crime of violence” under the categorical approach and therefore could not support a Grade A classification. He also contended that the district court improperly relied on the retributive sentencing consideration in 18 U.S.C. § 3553(a)(2)(A). Because Hulbert had not raised either objection below, the Fifth Circuit reviewed only for plain error.
The Court’s Holding
The Fifth Circuit affirmed. It held that the district court did not plainly err by considering Hulbert’s actual conduct when classifying the assault as a Grade A violation. The Fifth Circuit has not decided whether the categorical approach applies under § 7B1.1(a)(1), and other circuits are divided. Given that unsettled law, any error was not clear or obvious.
The court also held that Hulbert failed to show clear or obvious reliance on the retributive factor in § 3553(a)(2)(A). Although the district court said it could not “justify this assault,” it neither invoked that provision nor expressly referred to retribution. Its remarks could instead reflect permissible concerns about deterrence or incapacitation, and that ambiguity defeated Hulbert’s claim under plain-error review.
Key Takeaways
- An unsettled circuit split can prevent a claimed sentencing error from qualifying as clear or obvious under plain-error review.
- The Fifth Circuit did not decide whether courts must use the categorical approach to classify a Grade A violation under U.S.S.G. § 7B1.1(a)(1).
- A defendant must identify record evidence plausibly showing that a revocation sentence rested on retribution rather than permissible considerations such as deterrence or incapacitation.
Why It Matters
The decision underscores the difficulty of challenging a revocation sentence without a contemporaneous objection. Where governing circuit law remains unsettled or the sentencing judge’s reasoning is ambiguous, a defendant will generally struggle to establish the clear or obvious error required for plain-error relief.
The opinion leaves unresolved an important Guidelines question: whether the categorical approach governs the classification of offenses under § 7B1.1(a)(1). District courts in the Fifth Circuit therefore still lack a definitive circuit rule on that issue.