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 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 both claims 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 court emphasized that the Fifth Circuit has not decided whether the categorical approach applies to § 7B1.1(a)(1) and that 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” the assault, it neither invoked that provision nor expressly referred to retribution. Its remarks could instead reflect permissible considerations such as deterrence and incapacitation, and the ambiguity defeated Hulbert’s claim on plain-error review.
Key Takeaways
- The Fifth Circuit did not decide whether the categorical approach governs Grade A classifications under U.S.S.G. § 7B1.1(a)(1).
- Unsettled circuit law and a division among other circuits prevented Hulbert from establishing a clear or obvious classification error.
- An ambiguous sentencing remark does not establish plain error unless the record expressly or unmistakably shows reliance on an impermissible retributive factor.
Why It Matters
The decision underscores the difficulty of challenging a supervised-release revocation sentence without a timely district-court objection. On plain-error review, an unresolved legal question generally will not support reversal, and ambiguous sentencing remarks will not establish reliance on a prohibited consideration.
The opinion leaves open the underlying question whether courts in the Fifth Circuit must use the categorical approach when determining whether conduct constitutes a Grade A supervised-release violation.