     Case: 14-50490       Document: 00512819158         Page: 1     Date Filed: 10/29/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                       No. 14-50490                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                  October 29, 2014
                                                                            Lyle W. Cayce
                                                  Plaintiff–Appellee,            Clerk
v.

SAMANTHA CASTRO,
also known as Samantha Moreno Castro,
also known as Samantha M. Castro,

                                                  Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                         USDC No. DR-10-CR01561-AM


Before DAVIS, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM:*
           Castro appeals her sentence of eighteen months in connection with
revocation of her supervised release. On appeal, Castro argues that the district
court did not consider the proper factors in imposing her sentence, and that
the sentence is an unreasonable departure from the sentencing guidelines.




       * Pursuant to Fifth Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in Fifth
Cir. R. 47.5.4.
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                                 No. 14-50490
Because we find that the district court properly considered and applied the
relevant factors in imposing Castro’s sentence, we AFFIRM.
                                       I.
      On January 20, 2010, Castro was detained and charged with one count
of transportation of aliens in violation of 8 U.S.C. § 1324(a)(1). Castro was
released on bond and instructed to attend a substance abuse treatment
program for methamphetamines. She fled the treatment center and a warrant
for her arrest was issued. Thereafter, she was taken into custody. She was
subsequently sentenced to one year of supervised probation. On May 9, 2011
Castro’s probation was revoked, and she was sentenced to eight months
imprisonment followed by three years of supervised release. On February 19,
2014, the government filed a petition to revoke Castro’s supervised release.
The district court held a revocation hearing on May 19, 2014, and imposed a
revocation sentence of eighteen months of imprisonment, to run consecutively
to any state charges, followed by a second supervised release term of eighteen
months.
      The following facts and events were considered at the May 19, 2014
revocation hearing. Among other conditions of her probation, Castro was
required to: (1) abstain from the use of alcohol and/or all other intoxicants
during the term of supervision; (2) answer truthfully all inquiries by the
probation officer and follow the instructions of the probation officer; and (3)
refrain from committing another federal, state, or local crime.
      Castro had a suspended driver’s license dating back to unpaid tickets in
2008. On January 19, 2014, Castro was pulled over and cited for driving on a
suspended license. She was instructed to find alternate transportation. On
January 31, 2014, Castro was arrested for public intoxication and driving with
license suspended. The arresting officer stated that he was not certified to
perform the breathalyzer test required to arrest Castro for driving while
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                                  No. 14-50490
intoxicated, but that had the breathalyzer been available, Castro would have
been arrested for DWI. On February 4, 2014, Castro advised the probation
office of the arrest for driving with a suspended license. According to the
probation officer, at a February 4, 2014 administrative hearing, Castro
attempted to downplay her arrest. The probation officer recommended that
Castro’s term of supervision be revoked.
                                        II.
      Sentences imposed on revocation of supervised release are reviewed
under a “plainly unreasonable” standard. United States v. Miller, 634 F.3d
841, 843 (5th Cir. 2011), cert. denied 132 S.Ct. 496 (2011). However, if the
defendant fails to make a sufficient objection in the district court, this circuit
uses a “plain error” standard of review. United States v. Warren, 720 F.3d 321,
326 (5th Cir. 2013). “[U]nder plain error review, the defendant bears the
burden to show: (1) error; (2) that is plain; (3) that affects his substantial
rights”; and (4) that seriously affected the fairness, integrity, or public
reputation of the judicial proceeding. Id. (internal quotation marks and
citation omitted). Here, because Castro did not make a sufficient objection in
the district court, we use the plain error standard of review.
                                       III.
      A district court’s imposition of sentencing upon revocation of supervised
release is governed by 18 U.S.C. § 3583(e)(3).            Under § 3583(e)(3), after
considering the factors set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D),
(a)(4), (a)(5), (a)(6), and (a)(7), the district court may “revoke a term of
supervised release, and require the defendant to serve in prison all or part of
the term of supervised release authorized by statute for the offense that
resulted in such term of supervised release without credit for time previously
served on postrelease supervision. . . .” § 3583(e)(3).


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                                          No. 14-50490
       The original charge underlying Castro’s supervised release is the
transportation of an alien offense, in violation of § 1324(a)(1)(A)(ii) and (B)(ii).
This is a Class D felony. Under § 3583(e)(3), where the underlying offense of
conviction is a Class D felony, the statutory maximum for sentencing in
connection with revocation of supervised release is two years. § 3583(e)(3).
The district court imposed a sentence of eighteen months, which is less than
the two year maximum permitted under § 3583(e)(3).
       Castro argues that the district court did not adequately consider the
relevant factors when determining her sentence. 1 Castro further argues that
the district court provided insufficient reasons for imparting the eighteen-
month sentence, which was above the sentencing range in the advisory
guidelines. The district court may impose a sentence outside of the advisory
guidelines’ range, so long as the court does not exceed the statutory maximum.
Warren, 720 F.3d at 332 (citing United States v. Casey, 340 F. App’x 199, 200
(5th Cir. 2009)).
       Through the revocation hearing, the district court explained precisely
why it was choosing to impart a lengthy sentence upon Castro, given the
specific circumstances of her violations and her history while on supervised
release. The district court considered the multiple opportunities Castro had
received, including being part of an extremely small minority of defendants
who were initially granted probation.                  The district court also considered
Castro’s failure to reform her behavior after receiving previous warnings and
directives from her probation officers. The court also stated that it considered
the ineffectiveness of her previous incarceration at rehabilitating her behavior


       1 Castro argues that the district court did not properly consider the factors under §
3583(c). Because this is a sentence imposed in connection with a revocation of supervised
release, it is properly governed by § 3583(e), not § 3583(c). Under § 3583(e), the relevant
factors are those listed in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
(a)(7).
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                                  No. 14-50490
and deterring her from future offenses. On this record, the district court’s
decision was not “plain error.”
      Because Castro fails to show that the district court’s sentence was in
error, we AFFIRM.




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