     Case: 13-40183      Document: 00512492633         Page: 1    Date Filed: 01/08/2014




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

                                                                                FILED
                                    No. 13-40183                          January 8, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BENITO URBINA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:07-CR-450-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Benito Urbina appeals from his sentence following
the revocation of his term of supervised release. His only contention is that
the district court impermissibly considered the need to promote respect for the
law and the need for just punishment when imposing sentence.
       Because Urbina failed to object in the district court, our review is for
plain error. United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). To


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40183    Document: 00512492633     Page: 2   Date Filed: 01/08/2014


                                 No. 13-40183

prevail under the plain error standard, Urbina “must show an error that is
clear or obvious and affects his substantial rights.” Id. at 260. If he makes
such a showing, we may exercise our discretion to correct the error, “but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.
      Among the factors a district court should consider when imposing
sentences generally is “the need for the sentence imposed . . . to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.”      18 U.S.C. § 3553(a)(2)(A).     The factors in
subsection (a)(2)(A), however, are not listed among the factors that a district
court should consider when deciding whether to revoke a term of supervised
release and impose sentence pursuant to 18 U.S.C. § 3583(e). See § 3583(e).
“[I]t is improper for a district court to rely on § 3553(a)(2)(A) for the
modification or revocation of a supervised release term.” United States v.
Miller, 634 F.3d 841, 844 (5th Cir. 2011).
      In Miller, however, we addressed a revocation and sentencing pursuant
to § 3583(e). Miller, 634 F.3d at 844. Urbina’s revocation and sentencing was
based in part on an allegation that he used and possessed cocaine. Revocation
of release and imposition of a sentence of imprisonment were mandatory
pursuant to § 3583(g), which does not list or omit any of the § 3553(a)
sentencing factors. See § 3583(g). We have not found clear or obvious error
when a district court has considered the factors set out at § 3553(a)(2)(A) in
revocations that are governed in whole or in part by § 3583(g). United States
v. Holmes, 473 F. App’x 400, 401 (5th Cir. 2012); United States v. Wilson, 460
F. App’x 351, 352 (5th Cir.), cert. denied, 132 S. Ct. 2759 (2012); United States
v. Flores-Gaytan, ___ F. App’x ___, No. 12-41398, 2013 WL 5670855, at *1 (5th
Cir. Oct. 18, 2013) (unpublished); United States v. Davis, ___ F. App’x ___, No.



                                       2
    Case: 13-40183    Document: 00512492633    Page: 3   Date Filed: 01/08/2014


                                No. 13-40183

10-11152, 2013 WL 3227275, at *2-*3 (5th Cir. May 17, 2013) (unpublished),
cert. denied, 134 S. Ct. 349 (2013).      Although the cases on point are
unpublished, they are “highly persuasive because [this court] explicitly
rejected the identical argument that [Urbina] advances here.” United States
v. Pino Gonzalez, 636 F.3d 157, 160 (5th Cir. 2011).
      AFFIRMED.




                                      3
