     Case: 18-41012   Document: 00515169975   Page: 1   Date Filed: 10/23/2019




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

                               No. 18-41012                       FILED
                             c/w No. 18-41014                 October 23, 2019
                            Summary Calendar                   Lyle W. Cayce
                                                                    Clerk

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

ENRIQUE A. ECHEVERRIA-BENITEZ,

                                         Defendant-Appellant

_______________________________________
Consolidated with 18-41014

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

ENRIQUE ECHEVERRIA-BENITEZ,

                                         Defendant-Appellant


                Appeals from the United States District Court
                     for the Southern District of Texas
                          USDC No. 5:18-CR-460-1
                          USDC No. 5:18-CR-655-1
     Case: 18-41012      Document: 00515169975         Page: 2    Date Filed: 10/23/2019


                                     No. 18-41012
                                   c/w No. 18-41014



Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       In these consolidated cases, Enrique A. Echeverria-Benitez appeals his
within-guidelines and within-range sentences for his conviction of illegal
reentry after removal and resulting revocation of supervised release. He was
sentenced, respectively, to 27 months of imprisonment, to be followed by three
years of supervised release, and nine months of imprisonment, running
consecutively. Echeverria-Benitez argues that the district court improperly
based his revocation sentence on a “retributive” sentencing factor under 18
U.S.C. § 3553(a)(2)(A) when it ordered his sentences to run consecutively. He
also argues that his sentences are substantively unreasonable, especially
insofar as their consecutive nature effectively punishes him twice for the same
conduct.
       We review these unpreserved arguments under the plain error standard.
United States v. Whitelaw, 580 F.3d 256, 259–60 (5th Cir. 2009); United States
v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007). In order to prevail under that
standard, Echeverria-Benitez must show that he did not intentionally
relinquish or abandon the claim of error, the error was plain, clear, or obvious,
and the error affected his substantial rights. United States v. Perez-Mateo, 926
F.3d 216, 218 (5th Cir. 2019). “Where those three conditions are met, and the
error also seriously affects the fairness, integrity or public reputation of
judicial proceedings, then the court of appeals should exercise its discretion to
correct the forfeited error.” Id. (internal quotation marks and citation omitted).


       * 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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    Case: 18-41012     Document: 00515169975      Page: 3   Date Filed: 10/23/2019


                                  No. 18-41012
                                c/w No. 18-41014

      It is error for a district court to calculate a revocation sentence “based on
a perceived need for retribution” under § 3553(a)(2)(A). United States v.
Sanchez, 900 F.3d 678, 683 (5th Cir. 2018); see also United States v. Miller, 634
F.3d 841, 844 (5th Cir. 2011). However, Echeverria-Benitez has not cited any
governing authority that supports his argument that consecutive sentences for
a new law violation and a resulting revocation indicate reliance on such a
factor. “[A]n error is not plain if it requires the extension of precedent.” United
States v. Vargas-Soto, 700 F.3d 180, 182 (5th Cir. 2012). Therefore, Echeverria-
Benitez has not shown any error that was clear or obvious as to the factors on
which the district court based his revocation sentence.
      Likewise, Echeverria-Benitez has not shown that his within-guidelines
and within-range sentences were plainly unreasonable. “A sentence is
substantively unreasonable if it (1) does not account for a factor that should
have received significant weight, (2) gives significant weight to an irrelevant
or improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors.” United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013)
(internal quotation marks and citation omitted). Echeverria-Benitez’s
sentences fall within the advisory guidelines range and the advisory policy
statements range, and thus are presumptively reasonable. United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United States v. Lopez-Velasquez, 526
F.3d 804, 809 (5th Cir. 2008). “The Sentencing Commission’s relevant policy
statements recommend that sentences involving revocation of supervised
release . . . run consecutively.” United States v. Flores, 862 F.3d 486, 489 (5th
Cir. 2017); see also U.S.S.G. § 7B1.3(f) & cmt. n.4. We have previously upheld
consecutive sentences for illegal reentry after removal and resulting
revocations of supervised release. See United States v. Hernandez-Archila, 700
F. App’x 370, 371 (5th Cir. 2017); United States v. Cantu-Sandoval, 668 F.


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                                 No. 18-41012
                               c/w No. 18-41014

App’x 638, 639 (5th Cir. 2016). Echeverria-Benitez has not shown that the
district court clearly gave improper weight to any factor or clearly erred in its
balancing of the sentencing factors.
      Therefore, we AFFIRM the judgments of the district court.




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