     Case: 15-10813      Document: 00513645136         Page: 1    Date Filed: 08/19/2016




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

                                    No. 15-10813
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                          August 19, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk


UNITED STATES OF AMERICA,
                                                 Plaintiff–Appellee,
versus
RIGOBERTO RODRIGUEZ,
                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-16-1




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

       Rigoberto Rodriguez appeals the 24-month term of imprisonment
imposed on the second revocation of his supervised release (“SR”). He contends
that the revocation sentence is substantively unreasonable.

       Because Rodriguez did not object to the revocation sentence, our review


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10813     Document: 00513645136     Page: 2   Date Filed: 08/19/2016


                                  No. 15-10813

is for plain error only, even though he requested a within-guidelines sentence
in the district court. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir.
2009). To the extent that Rodriguez contends that Whitelaw and other deci-
sions of this court, limiting review to plain error under such circumstances, are
in conflict with other authorities, his theory is unavailing, because “[i]t is a
firm rule of this circuit that in the absence of an intervening contrary or super-
seding decision by this court sitting en banc or by the United States Supreme
Court, a panel cannot overrule a prior panel’s decision.” Cardenas v. Thaler,
651 F.3d 442, 445 (5th Cir. 2011) (per curiam) (quoting Burge v. Parish of St.
Tammany, 187 F.3d 452, 466 (5th Cir. 1999)).

      “A [revocation] sentence is substantively unreasonable if it (1) does not
account for a factor that should have received significant weight, (2) gives sig-
nificant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” United States v. War-
ren, 720 F.3d 321, 332 (5th Cir. 2013) (revocation case) (internal quotation
marks and citation omitted). Under the applicable plain-error standard, Rodri-
guez further must show that such an error is clear or obvious and affects his
substantial rights, in which case this court has discretion to correct the error,
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See id. at 326–27, 332.

      Rodriguez’s primary contention, relying on United States v. Miller,
634 F.3d 841, 843–44 (5th Cir. 2011), and 18 U.S.C. § 3553(a)(2)(A) is that the
district court erred by basing the sentence on the need to promote respect for
the law; Rodriguez also asserts that the court improperly based its sentence on
the need to provide punishment for his past criminal behavior. Viewed in its
entirety, however, the record does not support a determination that the court
relied on an impermissible factor. The court never used the § 3553(a)(2)(A)


                                        2
    Case: 15-10813    Document: 00513645136     Page: 3   Date Filed: 08/19/2016


                                 No. 15-10813

phrase “promote respect for the law”; indeed, neither “promote” nor “respect”
was uttered at the revocation proceeding. Although the court used the word
“punishment” several times, it never stated the § 3553(a)(2)(A) phrase “just
punishment.” To the extent that it spoke of “punishment,” it did so as a short-
hand way of referring to the penalty that Rodriguez was to receive for having
violated the terms of SR. “[T]he goal of revocation is to punish a defendant for
violating the terms of the [SR].” Miller, 634 F.3d at 843. Further, although
the court stated that Rodriguez had not learned that he had to comply with the
law and follow the rules of society, it made such observations in connection
with a recitation of Rodriguez’s extensive criminal history and his history of
SR violations.

      This interpretation of the remarks is supported by the written judgment,
which states that “the court considered all relevant factors set forth in
18 U.S.C. § 3553(a) that are proper for consideration in a revocation context.”
This interpretation is also supported by the court’s statement at the hearing:
“I’m convinced that the only sentence that would appropriately address your
conduct and take into account the factors the Court should consider under
[§] 3553(a) in a revocation context is the 24-month term of imprisonment.”
Assuming arguendo that there is a lingering ambiguity based on the court’s
remarks at the hearing, “[b]ecause [the defendant] did not object at sentencing
and give the court an opportunity to clarify itself, we are unable to conclude
that the court based his sentence on an impermissible factor.” United States
v. Hernandez-Martinez, 485 F.3d 270, 274 (5th Cir. 2007).

      Rodriguez has not shown clear or obvious error. See Warren, 720 F.3d
at 326–27. The judgment of sentence is AFFIRMED.




                                       3
