     Case: 10-40812 Document: 00511485582 Page: 1 Date Filed: 05/23/2011




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

                                                 FILED
                                                                            May 23, 2011
                                     No. 10-40812
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BELMA LINDA LUCERO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:06-CR-740-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Belma Linda Lucero was convicted of aiding and abetting the
transportation of an unlawful alien and was sentenced on May 31, 2007, to 33
months of imprisonment to be followed by a 3-year term of supervised release.
On December 9, 2009, Lucero’s supervised release was revoked, and she was
sentenced to 90 days in prison to be followed by another term of supervised
release. Lucero was subsequently charged with violating the conditions of this
second term of supervised release by committing the criminal offenses of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-40812 Document: 00511485582 Page: 2 Date Filed: 05/23/2011

                                  No. 10-40812

criminal conspiracy, making terroristic threats, and being a felon in possession
of a firearm. Lucero initially pleaded not true to the charge involving a criminal
conspiracy. Over a Confrontation-Clause objection, the district court admitted
a police report and search warrant into evidence. Lucero subsequently pleaded
true to all of the charges that she violated the terms of her supervised release.
The district court revoked Lucero’s supervised release and sentenced her to a 21-
month term of imprisonment and 24 months of supervised release.
      Lucero argues that the district court violated her rights under the
Confrontation Clause when it admitted hearsay evidence to determine her
sentence. There is no Confrontation Clause violation when hearsay testimony
is used for sentencing purposes. See United States v. Beydoun, 469 F.3d 102, 108
(5th Cir. 2006). As Lucero pleaded true to all of the charges and does not
challenge the revocation, this issue has no merit.
      Lucero argues that the district court erred in imposing sentence because
the district court did not calculate the advisory guidelines range. Under Gall v.
United States, 552 U.S. 38, 51 (2007), “failing to calculate (or improperly
calculating) the Guidelines range” is a significant procedural error. When, as in
this case, a defendant fails to object to errors in the sentencing procedures, they
are reviewed for plain error only. See United States v. Whitelaw, 580 F.3d 256,
259 (5th Cir. 2009). To show plain error, Lucero must show a forfeited error that
is clear or obvious and that affects her substantial rights. Puckett v. United
States,129 S. Ct. 1423, 1429 (2009). Notwithstanding any procedural error,
Lucero is not entitled to relief because she cannot show that the error affected
her substantial rights because she has not shown even the possibility of a
different sentence. See United States v. Blocker, 612 F.3d 413, 416 (5th Cir.),
cert. denied, 131 S. Ct. 623 (2010).
      Lucero argues, and the Government concedes, that the district court erred
in imposing a 24-month term of supervised release. Although no objection was
raised in the district court, this court reviews de novo whether a revocation

                                        2
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                                No. 10-40812

sentence is in excess of the statutory maximum. See United States v. Hampton,
633 F.3d 334, 336 (5th Cir. 2011). The maximum term of supervised release
available upon revocation is the term of supervised release authorized for the
defendant’s original offense reduced by the aggregate term of imprisonment
imposed on revocation. See § 3583(h); United States v. Vera, 542 F.3d 457, 459
(5th Cir. 2008); Hampton, 633 F.3d at 339.      The imposition of a term of
supervised release of 24 months exceeded the maximum allowed by statute. See
§ 3583(h). The judgment of the district court should be vacated and the matter
remanded for resentencing in accordance with § 3583(h).
      VACATED and REMANDED.




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