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

                                                                            FILED
                                                                        December 28, 2007

                                       No. 06-51464                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee

v.

RUBEN MARTINEZ PEREZ

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 4:01-CR-372-ALL


Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
       At Defendant-Appellant Ruben Martinez Perez’s sentencing following
revocation of his supervised release, the district court exceeded the sentencing
range recommended by the policy statements in the United States Sentencing
Guidelines (the “Guidelines”) when it imposed the statutory maximum of 60
months imprisonment.           Perez appeals, contending that the district court
committed plain error by not expressly stating its reasons for selecting a
supervised release revocation sentence outside the policy statements’


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                        No. 06-51464

recommended range. Concluding that the district court did not commit plain
error when it failed to provide its specific reasons for imposing a sentence above
the recommended range, we affirm.
                          I. FACTS AND PROCEEDINGS
       In 2002, Perez pleaded guilty to importation of cocaine in violation of 21
U.S.C. §§ 952 and 960, and was sentenced to 37 months imprisonment plus three
years of supervised release. His term of supervised release began in 2004.
       After Perez was arrested for possession of cocaine and marijuana in 2006,
the government sought to revoke his supervised release. Perez pleaded true to
the government’s allegation that he had violated the terms of his supervised
release. Under the policy statements in Chapter 7 of the Guidelines, which
provide non-binding ranges for sentences imposed pursuant to revocation of
supervised release,1 the recommended range of imprisonment for Perez was 24
to 30 months, and the statutory maximum term of imprisonment was 60 months.
       After hearing arguments from both Perez and the government, the district
court made only the following statement: “The Court has considered the policy
statements contained in Chapter 7 of the Guidelines and finds that they do not
adequately address the Defendant’s repeated violations of the conditions of
release.” The court then sentenced Perez to the statutory maximum of 60
months in prison. Perez timely filed a notice of appeal.
                             II. STANDARD OF REVIEW



       1
         Probation revocation sentences are not congruent with Guidelines sentences for crimes
of conviction. Even under the pre-United States v. Booker, 543 U.S. 220 (2005), mandatory
Guidelines regime, supervised release revocation sentences were left to the discretion of the
court, and the sentencing ranges recommended by the policy statements in Chapter 7 of the
Guidelines were treated as non-mandatory. The Sentencing Commission explained that it
chose to issue advisory policy statements for sentences following revocation of supervised
release because they provide the district court with “greater flexibility” than do the official
Guidelines. U.S.S.G. ch. 7, pt. A, § 3(a); see also United States v. Denard, 24 F.3d 599, 602 (4th
Cir. 1994); United States v. Levi, 2 F.3d 842, 845 (8th Cir. 1993).

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                                         No. 06-51464

       Both parties agree that, because Perez raises this claim for the first time
on appeal, it is reviewed for plain error.2 To demonstrate plain error, Perez must
show that (1) there is error; (2) it is plain; (3) it affects substantial rights; and (4)
it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.3
                                       III. ANALYSIS
       The district court did not plainly err when, following the revocation of
Perez’s supervised release, it sentenced him outside the Guidelines-
recommended range and offered scant explanation for so doing. As even the
court’s sparse rationale for imposing the statutory maximum satisfies our
standard, Perez’s claim must fail.
       Two main statutory provisions are relevant to the discussion of Perez’s
claim. First, the district court is required, under § 3553(c)(2) of the Sentencing
Reform Act of 1984 (the “SRA”), to state its reasons for the imposition of a
particular sentence. In the instance of a supervised release revocation, if the
sentence is “outside the range” set forth in the advisory policy statements
contained in Chapter 7 of the Guidelines, the court must articulate its “specific
reason” for imposing such a sentence.4 Second, pursuant to § 3583(e) of the SRA,


       2
         United States v. Akpan, 407 F.3d 360, 378 (5th Cir. 2005); cf. United States v. Lewis,
424 F.3d 239, 243 (2d Cir. 2005) (noting that, even though appellant “did not raise her 18
U.S.C. § 3553(c) objection at the time of her sentencing . . . a less stringent standard” than
plain error review may apply); United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002) (“In
the sentencing context, there are circumstances that permit the Court of Appeals to relax the
otherwise rigorous standards of plain error review to correct sentencing errors.”); see also FED.
R. CRIM. P. 52(b) (“A plain error that affects substantial rights may be considered even though
it was not brought to the court’s attention.”).
       3
           United States v. Jones, 484 F.3d 783, 791-92 (5th Cir. 2007).
       4
         18 U.S.C. § 3553(c)(2) (“The court, at the time of sentencing, shall state in open court
the reasons for its imposition of the particular sentence, and, if the sentence . . . is outside the
range, described in subsection (a)(4), the specific reason for the imposition of a sentence
different from that described, which reasons must also be stated with specificity in the written
order of judgment and commitment . . . .”) (emphasis added).

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the sentencing judge, when determining the appropriate sentence for a
supervised release violation, must consider most of the factors set forth in §
3553(a), such as the nature and circumstances of the offense and the history and
characteristics of the defendant (§ 3553(a)(1)), the need to protect the public from
further crimes by the defendant (§ 3553(a)(2)(c)), and the applicable guidelines
or policy statements issued by the Sentencing Commission (§ 3553(a)(4) & (a)(5))
concerning revocation of supervised release, including Chapter 7 of the
Guidelines, which suggests penalties to be imposed pursuant to supervised
release violations.5
         Perez contends that § 3553(c)(2) of the SRA requires that the district court
expressly state its reasons (orally or in writing) for selecting a revocation
sentence. Perez cites the Second Circuit’s decision in United States v. Lewis as
authority for his argument that the district court’s simple rationale, i.e., that it
“considered the policy statements contained in Chapter 7 of the Guidelines” but
determined that “they do not adequately address the Defendant’s repeated
violations of the conditions of release,” does not satisfy § 3553(c)(2)’s “specific
reason” requirement.6 Thus, insists Perez, the sentencing judge committed plain
error.
         The government, in contrast, contends that § 3553(c)(2) is silent on the
scope of the “specific reason” requirement. The government notes that the SRA


         5
         18 U.S.C. § 3583(e) (“The court may, after considering the factors set forth in section
3553 (a) . . . revoke a term of supervised release, and require the defendant to serve in prison
all or part of the term of supervised release authorized by statute for the offense that resulted
in such term of supervised release without credit for time previously served on post-release
supervision . . . .”) (emphasis added).
         6
         424 F.3d 239 (2d Cir. 2005). Perez’s heavy reliance on Lewis might be misplaced. In
Lewis, the district court stated “no reason at all” for exceeding the advisory sentencing range
under the non-binding policy statements in the Sentencing Guidelines. Id. at 242. The Second
Circuit concluded that the district court had failed to state its specific reasons for the sentence
and remanded for resentencing. Id. at 249. In contrast, the district court in Perez’s case
demonstrated at least some consideration of the relevant sentencing factors under § 3553(a).

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requires only that courts consider the non-binding policy statements concerning
the revocation of supervised release contained in Chapter 7 of the Guidelines,
arguing that the district court complied with this requirement when it explicitly
confirmed that it had “considered the policy statements contained in Chapter 7”
before issuing Perez’s revocation sentence. The government concludes that, as
the district court sufficiently disclosed the rationale behind its sentence, it did
not commit plain error.
       Given the plain error standard of review today, we do not address what
oral or written disclosure requirements the SRA and Chapter 7 of the Guidelines
place on the sentencing judge in a supervised release revocation sentencing
hearing. This is because the district court followed established precedent and
thus did not plainly err. In United States v. Teran, we made clear that even
“implicit consideration of the § 3553 factors is sufficient” when a judge imposes
a supervised release revocation sentence.7               The district court’s minimal
disclosure of the rationale behind Perez’s sentence is therefore sufficient to rise
above the level of plain error.


                                  IV. CONCLUSION
       Because the sentencing judge followed established precedent here and
thus did not commit plain error, Perez’s sentence is AFFIRMED.




       7
         98 F.3d 831, 836 (5th Cir. 1996) (emphasis added) (citations omitted); see also United
States v. Headrick, 963 F.2d 777, 782 (5th Cir. 1992).

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