     Case: 09-50615   Document: 00511122562   Page: 1   Date Filed: 05/26/2010




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

                                                FILED
                                                                 May 26, 2010
                                No. 09-50615
                              Summary Calendar                   Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.

RAUL VALENCIA-MAZARIEGOS, also known as Pedro Rene Hernandez,

                                          Defendant-Appellant

                       ---------------------------
                             consolidated with:


                                No. 09-50625
                              Summary Calendar


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee
v.

RAUL VALENCIA-MAZARIEGOS,
                                          Defendant-Appellant


                 Appeals from the United States District Court
                       for the Western District of Texas
                            USDC No. 1:08-CR-217
                            USDC No. 1:09-CR-228
   Case: 09-50615       Document: 00511122562 Page: 2             Date Filed: 05/26/2010
                                    No. 09-50615
                                  c/w No. 09-50625

Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Raul Valencia-Mazariegos (Valencia) appeals the 60-month sentence he
received on revocation of his supervised release, following his guilty-plea
convictions for: (1) being an illegal alien in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(5)(A); and (2) illegal reentry into
the United States, in violation of 8 U.S.C. § 1326. Although he noticed an appeal
of both those convictions and the resulting concurrent 120-month sentences, as
well as an appeal from the revocation sentence, Valencia failed to brief any
argument regarding the underlying convictions and sentences. Thus, he has
abandoned those issues. See United States v. Martinez, 263 F.3d 436, 438 (5th
Cir. 2001).
       Valencia argues that the consecutive 60-month revocation sentence was
unreasonable and/or plainly unreasonable1 because it was unduly punitive, given
that he had already received a harsh 10-year sentence on the underlying
violations based on his criminal past and other factors cited by the district court.
He urges that those same factors cannot support an additional five-year
revocation sentence because they had already been accounted for sufficiently.
Alternatively, Valencia argues that, if a consecutive revocation sentence was
warranted, the court should have restricted the sentence to the Guidelines range
of 21 to 27 months.




       *
         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.
       1
         We have yet to address whether sentences imposed upon revocation of supervised
release are to be reviewed under the “unreasonableness” standard of United States v. Booker,
540 U.S. 220, 261 (2005). Prior to Booker, we applied a “plainly unreasonable” standard. See
United States v. Hinson, 429 F.3d 114. 119–20 (5th Cir. 2005). We need not decide the correct
standard today, as Valencia’s sentence is appropriate under either standard. Id. at 119.

                                              2
   Case: 09-50615   Document: 00511122562 Page: 3       Date Filed: 05/26/2010
                                No. 09-50615
                              c/w No. 09-50625

      The district court’s decision to run the revocation sentence consecutive to
the sentence on the underlying charges was authorized by statute and is
preferred under the Guidelines. See 18 U.S.C. § 3584; U.S.S.G. § 7B1.3(f) &
comment. (n.4.). Additionally, both the sentencing transcript and the written
statement of reasons reveal that the district court considered the 18 U.S.C.
§ 3553 factors when imposing Valencia’s revocation sentence. Specifically, the
court found that a significant sentence beyond that imposed on the underlying
charges was necessary to reflect the seriousness of Valencia’s criminal past and
future dangerousness, as well as to promote respect for the law and provide
adequate deterrence, particularly given his nearly 30-year criminal career of
drug-trafficking, violence, and disregard for the laws of the United States.
      Because the 60-month sentence Valencia received on revocation was not
greater than what is authorized by statute, it is “thus clearly legal.” United
States v. Pena, 125 F.3d 285, 288 (5th Cir. 1997). Moreover, this court has
“routinely upheld release revocation sentences in excess of the advisory range
but within the statutory maximum” as satisfying both the plainly unreasonable
and unreasonableness standards. United States v. Jones, 182 F. App’x 343, 344
(5th Cir. 2006) (per curiam). Accordingly, Valencia’s revocation sentence is
acceptable under the “plainly unreasonable” and Booker “unreasonableness”
standards. See Hinson, 429 F.3d at 118–19.
      AFFIRMED.




                                       3
