     Case: 18-50395       Document: 00514926794         Page: 1     Date Filed: 04/23/2019




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


                                     No. 18-50395                                FILED
                                   Summary Calendar                          April 23, 2019
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

BENNY RAY REGALADO, also known as Benny Regalado, also known as
Benny R. Regalado,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CR-834-1


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Benny Ray Regalado appeals the revocation of his probation, imposed for
his conviction of possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B), (b)(2), and the court’s imposing 100 months’ imprisonment.
Regalado contends the district court violated his due process rights by
predetermining revocation and the imposition of an above-Guidelines



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-50395     Document: 00514926794    Page: 2   Date Filed: 04/23/2019


                                 No. 18-50395

sentence. He also asserts his sentence is plainly unreasonable, claiming the
court failed to: articulate sufficiently-compelling reasons for the sentence; and
account for a sentencing factor that should have received significant weight—
the need for the sentence to avoid unwarranted disparities between similarly-
situated defendants.
      When defendant pleads true to the allegations he violated the terms of
his supervised release, as Regalado did, he waives due-process protections
except for his right to present mitigating evidence indicating revocation is not
warranted. See United States v. Holland, 850 F.2d 1048, 1050–51 (5th Cir.
1988). Thus, Regalado’s challenge to his revocation on due-process grounds is
waived. See id. To the extent Regalado challenges the court’s decision to
revoke probation based on allegations to which Regalado did not admit, we do
not address this issue. Regalado’s plea of true to one allegation provides “an
adequate basis for the district court’s discretionary action of revoking
probation”.   United States v. Turner, 741 F.2d 696, 698 (5th Cir. 1984)
(citations omitted).
      After imposition of sentence, Regalado objected to the sentence as both
unconstitutionally disproportionate to the severity of the offense, and contrary
to the sentencing factors of 18 U.S.C. § 3553(a). He did not assert the sentence
was predetermined, or violative of due-process rights. Nor did he contend the
court failed to articulate sufficient reasons and/or give appropriate weight to a
particular sentencing factor.
      Because his objections were not sufficiently-specific to alert the court to
the claims of error he now raises on appeal and to provide an opportunity for
correction, review is only for plain error. See United States v. Whitelaw, 580
F.3d 256, 259 (5th Cir. 2009); United States v. Neal, 578 F.3d 270, 272 (5th Cir.
2009). Under that standard, Regalado must show a forfeited plain (clear or



                                       2
       Case: 18-50395   Document: 00514926794      Page: 3    Date Filed: 04/23/2019


                                   No. 18-50395

obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
        The court’s warning during the sentencing proceeding for the
original/underlying conviction (for which Regalado received probation) that he
would receive a sentence greater than six years if he violated the conditions of
probation does not constitute clear-or-obvious error. See id. And, the court
provided adequate reasons for the imposition of Regalado’s sentence on
revocation of probation. Additionally, the written order reflects the court
considered, inter alia, the Sentencing Guidelines policy statements of Chapter
7 in revoking probation before determining the facts of the instant case
warranted a sentence of 100 months. The court’s reasons are sufficient. See
United States v. Kippers, 685 F.3d 491, 498 (5th Cir. 2012). In short, Regalado
does not show the requisite clear-or-obvious error. See Puckett, 556 U.S. at
135.      Finally, Regalado’s argument regarding unwarranted sentencing
disparities is insufficient to show the court made a clear-or-obvious error in its
assessment of the sentencing factors. See id.; United States v. Warren, 720
F.3d 321, 332 (5th Cir. 2013).
        AFFIRMED.




                                          3
