     Case: 11-40542     Document: 00511921586         Page: 1     Date Filed: 07/16/2012




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

                                                                            FILED
                                                                            July 16, 2012
                                       No. 11-40542
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

LUIS PALOMO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:99-CR-392-2


Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
PER CURIAM:*
        Luis Palomo challenges the 24-month term of imprisonment imposed
following the revocation of his supervised release for the underlying crime of
aiding and abetting the taking of a motor vehicle by force, violence, and
intimidation. He contends the revocation sentence, which exceeds the advisory
Sentencing Guidelines range of 15 to 21 months, but nevertheless is within the
statutory maximum of 24 months, is procedurally unreasonable because the
district court failed expressly to consider the advisory Guidelines range and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40542    Document: 00511921586       Page: 2   Date Filed: 07/16/2012

                                   No. 11-40542

failed to articulate reasons for the sentence. We review for plain error. Because
Palomo has not shown that the claimed errors either affected his substantial
rights or seriously affected the fairness or integrity of the judicial proceeding, we
affirm.
                                         I.
      In 2000, Palomo was convicted of aiding and abetting the taking of a motor
vehicle by force, violence, and intimidation (carjacking) in violation of 18 U.S.C.
§§ 2, 2119. The district court sentenced him to 96 months of imprisonment, to
be followed by three years of supervised release. Palomo began his supervised
release term in November 2007. In June 2009, the probation officer filed a
petition to revoke supervised release, alleging that Palomo violated conditions
of his supervised release by (1) committing a new law violation of murder, and
(2) leaving the district without permission. The petition alleged that in May
2009, the murder victim was outside his home talking with a neighbor when a
vehicle approached, and one of the passengers in that vehicle began shooting in
his direction, fatally wounding him. Numerous witnesses identified Palomo as
the shooter. The record reflects that some time after the filing of the petition,
but prior to the revocation hearing, Palomo pleaded guilty to the Texas murder
offense and was sentenced to 20 years of imprisonment.
      At the revocation hearing, Palomo pleaded true to both allegations in the
petition. The Government requested that the district court impose a two-year
term of imprisonment upon revocation, to run consecutively to the 20-year term
imposed for the state murder conviction. The Government asserted that Palomo
had “exhibited a frightening degree of violence” more than once, and that, “he
basically laid in wait and killed someone who posed no threat to [him].” The
Federal Public Defender (FPD) requested that the court impose a revocation
sentence to run concurrently with the sentence imposed for the state murder
conviction or, alternatively, requested a sentence below the statutory maximum.



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                                  No. 11-40542

      The district court concluded that Palomo had violated both conditions of
supervised release as alleged, revoked supervised release, and sentenced him to
24 months of imprisonment to run consecutively to the 20-year state sentence.
The court stated only that it relied “on the nature of the allegations” as the basis
for the revocation and for ordering the sentence to run consecutively to the state
sentence. Palomo filed a timely notice of appeal.
                                        II.
      As Palomo concedes, because he did not object in district court to the
court’s alleged failure to consider the applicable Guidelines range or to the
adequacy of reasons supporting the sentence, review is for plain error. Puckett
v. United States, 556 U.S. 129, 135 (2009); United States v. Whitelaw, 580 F.3d
256, 259-60 (5th Cir. 2009). Parenthetically, however, Palomo seeks to preserve,
for possible further review, the issue whether a post-sentence objection is
required to preserve error. Under plain error review, Palomo must show a clear
or obvious error that affected his substantial rights. Puckett, 556 U.S. at 135.
This court has discretion to correct such an error, but only if it seriously affects
the fairness, integrity, or public reputation of the judicial proceeding. Id.
      Even assuming that the district court clearly or obviously erred by failing
to expressly consider the advisory Guidelines range, or by failing to articulate
reasons for the sentence, or both, Palomo’s challenge fails because he has not
shown that his substantial rights were affected. In the sentencing context, for
a clear or obvious error to have affected a defendant’s substantial rights, the
error must have “affected the sentencing outcome.” Whitelaw, 580 F.3d at 262-
63. This showing may be made by demonstrating a reasonable probability that,
but for the district court’s error, the defendant would have received a lesser
sentence. United States v. Garcia-Quintanilla, 574 F.3d 295, 304 (5th Cir. 2009).
Palomo does not contend that if the case were remanded for resentencing, the
district court could not impose the same 24-month revocation sentence, nor does
he contend that it would be reasonably probable that, but for the error, he would

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have received a lesser sentence. United States v. Davis, 602 F.3d 643, 647 & n.6
(5th Cir. 2010). And given the seriousness of one of Palomo’s supervised release
violations—murder—and the district court’s express rejection of his request for
a sentence below the statutory maximum, the record does not indicate that
Palomo’s sentence would have been any different had the district court expressly
considered the advisory Guidelines range or provided more detailed reasons for
the sentence.
      Also unavailing is Palomo’s reliance on Whitelaw to contend that the
claimed errors affected his substantial rights because they deprived him of
meaningful appellate review. In that case, we recognized the D.C. Circuit and
the Second Circuit’s holding, in cases involving, as here, above-Guideline
sentences, that a failure to explain a sentence affects a defendant’s substantial
rights insofar as it “affects the appellate court’s ability to perform a meaningful
review of the sentence.” 580 F.3d at 263. But, we also recognized that “[o]ther
circuits have declined to follow that lead,” and considered the theory only
arguendo. Id. at 263-64.
      At any rate, Palomo has not shown that our court’s ability to review the
sentence has been affected. Even if not explicitly stated by the district court, our
review of the record reveals the basis for Palomo’s sentence. In the revocation
hearing, the district court heard the Government’s argument that a 24-month
sentence was appropriate in the light of Palomo’s exhibition of a “frightening
degree of violence on more than one occasion,” including the recent murder. The
FPD expressly conceded that the court had a duty to protect the public from
individuals like Palomo. And the court identified the “nature of the allegations
. . . as the basis for this revocation and the order that [the sentence] . . . be
served consecutively.” It is obvious that the court based the revocation sentence
upon the serious nature of Palomo’s supervised release violation, namely,
committing murder. In short, Palomo has not shown that his substantial rights
were affected.

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      Finally, even if Palomo could establish that the claimed errors affected his
substantial rights, he has not shown that the errors “‘seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings.’” Davis, 602 F.3d
at 651 (quoting Puckett, 556 U.S. at 135). As stated, one of Palomo’s supervised
release violations was the commission of murder, and the difference between the
maximum Guidelines sentence and Palomo’s within-the-statutory-maximum
sentence was only three months. See id. at 651 (“[W]hether a sentencing error
[fails the third prong of plain error review] is dependant upon the degree of the
error and the particular facts of the case.”) (internal quotation marks omitted).
And although the court’s comments were brief, the record reflects that the court
determined that the nature of the violation merited the imposition of the
statutory maximum upon revocation.
      Therefore, because Palomo has not shown that claimed procedural errors
in sentencing affected his substantial rights or seriously affected the fairness or
integrity of the judicial proceeding, his sentence is
                                                                      AFFIRMED.




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