     Case: 12-10997       Document: 00512319085           Page: 1    Date Filed: 07/24/2013




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

                                                                              FILED
                                                                             July 24, 2013
                                     No. 12-10997
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GABINO LOPEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:06-CR-5-2


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Gabino Lopez appeals the 36-month term of imprisonment imposed upon
the revocation of his supervised release following a conviction for conspiracy to
possess with intent to distribute and possession with intent to distribute more
than 500 grams of cocaine. He argues that his sentence, which exceeds the
range set forth in the nonbinding policy statements in Chapter Seven of the
Sentencing Guidelines but is within the statutory maximum, is procedurally

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 12-10997

unreasonable because the district court failed to articulate adequate reasons
for the sentence.
      Although we generally review revocation sentences under 18 U.S.C.
§ 3742(a)’s “plainly unreasonable” standard, United States v. Miller, 634 F.3d
841, 843 (5th Cir. 2011), Lopez did not raise the specific issue he raises here in
the district court and we thus review for plain error. See United States v.
Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009); United States v.
Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir. 2007). Under the plain
error standard, Lopez must show a clear or obvious error that affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). We
have discretion to correct such an error only if it seriously affects the fairness,
integrity, or public reputation of the proceedings. See id.
      Lopez asserts generally that a district court frustrates the purpose of the
Sentencing Reform Act of 1984, deprives a defendant of his due process rights,
and violates the principle of separation of powers when it sentences a
defendant outside of the policy statement range without an adequate
explanation. When a district court deviates from the policy statement range,
Lopez asserts, it must provide an explicit rationale demonstrating that the
United States Sentencing Commission unsoundly applied “its fact-findings to
its statutory purpose” in crafting the relevant guideline provisions.
      In choosing a sentence, a district court must consider most of the factors
enumerated in 18 U.S.S.C. § 3553(a) and the policy statements found in
Chapter Seven of the Guidelines. 18 U.S.C. § 3583(e)(3); see U.S.S.G. Ch. 7, Pt.
B, intro. comment. Contrary to Lopez’s contention that, under FCC v. Fox
Television Stations, Inc., 556 U.S. 502 (2009), an explicit rationale should be
required for a district court setting a non-guidelines sentence on revocation, we
have required, based on § 3553(c) and Rita v. United States, 551 U.S. 338,


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                                 No. 12-10997

356-57 (2007), that the district court provide “some explanation” if it imposes
a revocation sentence that falls outside a defendant’s advisory sentencing
guidelines range. Whitelaw, 580 F.3d at 261-62. “[A] district court need not
engage in a checklist recitation of the section 3553(a) factors,” United States
v. Kippers, 685 F.3d 491, 498 (5th Cir. 2012) (internal quotation marks and
citation omitted), but should articulate reasons that are sufficient to “satisfy
the appellate court that [the district court] has considered the parties’
arguments and has a reasoned basis for exercising [its] own legal
decisionmaking authority.” Rita, 551 U.S. at 356.
      In setting the sentence in the instant matter, the district court permitted
Lopez’s counsel and Lopez himself to address the court regarding the
appropriate sentence. The district court then noted that Lopez began his
supervised release in October 2010, but by 2011 was already involved in a drug
transaction, had failed to submit two urine samples to his probation officer, and
had failed to notify his probation officer of a change in his employment. In light
of these facts, the district court determined that the policy statement range
was inadequate to address Lopez’s conduct, although the statutory maximum
was too high. The district court concluded that a sentence of 36 months of
imprisonment was “necessary to adequately and appropriately address the [§
3553(a)] factors the Court should consider in a revocation sentencing context.”
The district court’s explanation of Lopez’s sentence indicates that the district
court considered the policy statement range, the specific facts of Lopez’s
situation, and Lopez’s argument in favor of a lower sentence. As such, the
explanation was adequate under Rita, 551 U.S. at 356. The judgment of the
district court is AFFIRMED.




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