     Case: 11-50576   Document: 00511775781   Page: 1   Date Filed: 03/02/2012




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

                                                                  FILED
                                                                 March 2, 2012
                                No. 11-50576
                                 c/w 11-50582                    Lyle W. Cayce
                              Summary Calendar                        Clerk



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.

GINA MARIE SHORTER,

                                          Defendant-Appellant
_____________________________________

Cons w/ NO. 11-50582

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.

GINA M. SHORTER,

                                          Defendant-Appellant


                 Appeals from the United States District Court
                       for the Western District of Texas
                           USDC No. 1:09-CR-143-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
   Case: 11-50576       Document: 00511775781         Page: 2     Date Filed: 03/02/2012

                              No. 11-50576 c/w 11-50582

PER CURIAM:*
       Gina Marie Shorter appeals the 45-month sentence that the district court
imposed after revoking two concurrent terms of supervised release. Shorter’s
consecutive 21-month and 24-month sentences were greater than those
recommended by the advisory Sentencing Guidelines but not greater than the
statutory maximum sentences. Shorter admitted violating conditions of her
supervised release by smoking marijuana and by failing, for more than two
years, to inform the probation officer about her romantic relationship with a
convicted felon, Anthony Marquez.
       We review the sentence only to determine whether it is plainly
unreasonable. See United States v. Miller, 634 F.3d 841, 843 (5th Cir.), cert.
denied, 132 S. Ct 496 (2011). We first look for procedural error, and if we find
none we consider “the substantive reasonableness of the sentence under an
abuse-of-discretion standard.”         Id. (internal quotation marks and citation
omitted). “The fact that [we] might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.”
Gall v. United States, 552 U.S. 38, 51 (2007). A district court has discretion to
impose any sentence within the statutory maximum term of imprisonment.
United States v. McKinney, 520 F.3d 425, 427-28 (5th Cir. 2008). Where the
Guidelines are silent the court may impose the sentences consecutively. United
States v. Gonzalez, 250 F.3d 923, 929 & n.8 (5th Cir. 2001).
       Shorter contends that the district court erred by finding that she called
Marquez over 200 times after being directed not to do so. “[S]electing a sentence
based on clearly erroneous facts” is a procedural error. Gall, 552 U.S. at 51.
However, the district court did not commit a procedural error because the court
did not purport to speak in precise terms concerning the number of calls but only


       *
         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. 11-50576 c/w 11-50582

to indicate that Shorter was noncompliant with the probation officer’s direction.
There is no suggestion that the court would have found any significant difference
between 200 calls and 100 calls, or 50, or even one, when none were allowed.
      More significantly, the court did not select the sentence based on the calls.
Rather, the court cited Shorter’s chronic history of concealment and
untruthfulness whenever she has been on supervised release. The court noted,
among other things, that Shorter “files false reports, and she doesn’t tell the
truth to the probation officer and never has.” The sentence was thus based on
Shorter’s breach of trust and was not, as suggested by Shorter, punishment for
falling in love with the wrong man. The court’s rationale for the sentence was
fully consistent with the primary goal of a sentence on revocation, which is to
sanction the violator for breaching the trust implicit in supervised release. See
U.S.S.G. Ch. 7, Pt. A, intro. comment. ¶ 3(b); Miller, 634 F.3d at 843.
      Shorter’s arguments about the 18 U.S.C. § 3553(a) factors simply invite us
to reweigh those factors, which is contrary to abuse-of-discretion review. See
Gall, 552 U.S. at 51. The sentence was not plainly unreasonable, and the
judgment of the district court is AFFIRMED.




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