     Case: 13-50489       Document: 00512591589         Page: 1     Date Filed: 04/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                     No. 13-50489                           April 10, 2014
                                   Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

VANESSA QUEEN,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:10-CR-626-1


Before BARKSDALE, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Vanessa Queen appeals the 24-month prison sentence imposed upon
revocation of her second term of supervised release, following her conviction
and sentence for transporting an undocumented alien for financial gain. See 8
U.S.C. § 1324(a)(1)(B)(i) (bringing in certain aliens for financial gain); 18
U.S.C. § 3583(e) (modification of conditions or revocation).




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 13-50489

      “At this time, the [Sentencing] Commission has chosen to promulgate
policy statements only” regarding sentences for revocation of supervised
release.   U.S.S.G. Ch. 7, Pt. A, cmt. 1 (2013).        Even before Booker, the
supervised-release-violation policy statements were advisory only.             E.g.,
United States v. Giddings, 37 F.3d 1091, 1093 (5th Cir. 1994).
      Queen maintains her sentence is unreasonable because it is greater than
necessary to meet the goals of 18 U.S.C. § 3553(a) (sentencing factors). In that
regard, she contends her sentence, which exceeds the advisory Sentencing
Guidelines, policy-statement range, overstated the seriousness of her
violations by placing too much emphasis on a state assault charge, which she
contends was dismissed.
      A properly preserved objection to a revocation sentence is reviewed
under the “plainly unreasonable” standard, discussed in 18 U.S.C. § 3742(a)(4)
(appeal of sentence without Guideline). United States v. Miller, 634 F.3d 841,
843 (5th Cir. 2011). Because Queen did not object to the sentence in district
court, review is instead only for plain error. E.g., United States v. Whitelaw,
580 F.3d 256, 259–60 (5th Cir. 2009). Under that standard, she must show a
plain (clear or obvious) forfeited error that affected her substantial rights. E.g.,
Puckett v. United States, 556 U.S. 129, 135 (2009). If she does so, we have the
discretion to correct the error, but should do so only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. Id.
      Queen does not deny the State of Texas charged her with assault during
her second supervised release; and, she points to no evidence that the assault
charge has been dismissed. Nor does she cite authority for the proposition that
the district court was not free to consider a dismissed state charge. It goes
without saying that parties are required to brief issues sufficiently and provide
legal authority in support of the assertions presented. E.g., United States v.



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                                No. 13-50489

Charles, 469 F.3d 402, 408 (5th Cir. 2006).       Moreover, the finding, by
preponderance of the evidence, that Queen committed the assault, was a
factual determination, which established a propensity for violence and thus
factored into her history and characteristics under § 3553(a)(1).         Because
Queen did not object to that finding, it cannot constitute plain error. E.g.,
United States v. Conn, 657 F.3d 280, 284 (5th Cir. 2011).
      Additionally, the court based its sentence on Queen’s drug use, in
violation of the terms of her supervised release. She does not challenge that
additional basis for the within-statutory-maximum sentence. Our court has
held revocation sentences, above the advisory range but within the statutory-
maximum, do not constitute plain error. Whitelaw, 580 F.3d at 265 (citing
cases).
      AFFIRMED.




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