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

                                                                   FILED
                                                                November 19, 2008
                                No. 08-10170
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

RAY MORALES

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 5:00-CR-70-2


Before KING, GARWOOD, and BARKSDALE, Circuit Judges.
PER CURIAM:*
      Ray Morales appeals the February 2008 18-month sentence imposed
following revocation of his supervised release. He argues, for the first time on
appeal, that the district court imposed a procedurally unreasonable sentence
when it upwardly deviated from the recommended guidelines range without
expressly stating that it specifically considered the 18 U.S.C. § 3553(a) factors
or otherwise expressly stating any reasons for the sentence imposed.



      *
      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should not be published and is not precedent except under the limited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.
                                 No. 08-10170

      The underlying conviction was for the July 2000 possession with intent to
distribute of more than 50 grams of a mixture and substance containing
methamphetamine, for which appellant was sentenced in January 2001 to 87
months in prison and 4 years’ supervised release (the PSR for this offense
reflects, among other things, a 1999 conviction for possession with intent to
deliver a controlled substance). Supervised release commenced in February
2007. The motion to revoke, filed January 31, 2008, alleged violation of the
mandatory condition of not illegally possessing a controlled substance, in that
appellant used cocaine on December 31, 2007, and on January 1, 12 and 21,
2008; it was also alleged that he violated the drug aftercare condition by
violation of its alcohol abstinence condition on December 31, 2007. Appellant
pleaded true to these allegations. The Supervised Release Violation Report, to
which no objection was made, stated that the advisory chapter 7 revocation
sentence suggested range was 5-11 months’ imprisonment, based on a grade C
violation and criminal history category of III. It also stated that appellant’s
urine specimen submitted January 27, 2008 tested positive for cocaine; and that
he “terminated his employment (at his full time job) abruptly on or about
January 21, 2008.” It also stated he “could benefit from continued participation
in substance abuse treatment while in custody.”
      At the revocation hearing, no evidence was presented. Appellant’s counsel
stated that during supervision appellant maintained his own residence, had both
a full time job and a part time job, was a reliable employee, always on time and
worked overtime, and attempted “to reunite with his family and those
obligations.” Counsel stated “I would ask the Court to take that into account
when sentencing,” but said nothing more specific with respect to the sentence
desired except to “ask the Court for a nonbinding placement recommendation to
Beaumont.”    Counsel’s entire statement occupies some ten lines in the
transcript.



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                                 No. 08-10170

      The court offered appellant the opportunity to allocute if desired, and
appellant expressly declined to do so.
      The court then stated that it granted the motion to revoke, noting
appellant’s admission of true to the allegations, stated that “we have a grade C
violation with a Criminal History Category of III.” The court then sentenced
appellant to 18 months, stating “I will recommend he be placed at FCI
Beaumont.” The court also imposed a 36 month term of supervised release,
explaining some of the conditions. Then the court addressed appellant – “Now,
Mr. Morales” – explaining matters related to his appellate rights. The court
then stated “You may stand aside.”
      When a defendant, upon revocation of supervised release, fails to object
to the imposed sentence in the district court, his sentence is subject to plain
error review. United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007).
      Morales argues that his claim should not be subject to plain error review
because he had no opportunity to object to the district court’s sentence when, at
the revocation hearing, he was told to “stand aside” immediately following the
imposition of the sentence. This court has, on occasion, refused to apply the
plain error standard of review if a defendant was denied an opportunity to object
to his sentence. See, e.g., United States v. Warden, 291 F.3d 363, 365 n. 1 (5th
Cir. 2002), (holding that the defendant had no opportunity to preserve an
objection to a special condition of supervised release imposed for the first time
in the written judgment); United States v. Castillo, 430 F.3d 230, 243 (5th Cir.
2005) (finding it futile to require a prosecutor to formally object where the
district court was openly hostile towards the prosecutor and continuously
interrupted his attempts to formally object). However, Morales has provided no
evidence that he was denied such an opportunity. Morales’s sentence was
imposed in open court while he and his counsel were present; there is no
indication that an objection would have been futile or that the court ever
expressed anger, hostility, or an unwillingness to consider a proper objection.

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                                  No. 08-10170

Further, the fact that the court did not invite Morales to lodge an objection at
the conclusion of sentencing did not relieve him and his counsel of the
responsibility of asserting his objection, or, at least, ensuring that the record
reflected that he was prevented from doing so.
      Thus, Morales’s claim is subject to plain error review because he failed to
object in district court. See United States v. Peltier, 505 F.3d 389, 391–92 (5th
Cir. 2007). To demonstrate plain error, Morales must show a clear or obvious
error which affected his substantial rights.       Id. at 392.   We note in this
connection that it is obvious that the court heard and considered counsel’s brief,
nonspecific argument (it granted the request to recommend FCI Beaumont as
the place of confinement). Nor can counsel’s argument be reasonably deemed to
have brought out any especially compelling or unusual grounds in mitigation
such as to clearly call for a response.
      Even if it is assumed that the district court’s failure to expressly state
reasons for imposing the sentence as it did constitutes clear or obvious error, the
error is not reversible because Morales has not shown that it affected his
substantial rights. See United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir.
2005).1 Though the 18-month sentence imposed exceeded the recommended
guidelines range, it did not exceed the applicable three-year statutory maximum
for a class B felony, 18 U.S.C. § 3583(e)(3), section 3583(g)(1) requires revocation
and imposition of a term of imprisonment, and this court has “‘routinely upheld’
sentences on revocation above the advisory policy range but within the statutory
maximum.” United States v. Neal, 212 F. App’x 328, 331 (5th Cir. 2007).
      Accordingly, the district court’s judgment is AFFIRMED.



      1
      See also United States v. Cantrell, 236 Fed. App’x. 66 (5th Cir. 2007);
United States v. Perez, 260 Fed. App’x. 720 (5th Cir. 2007). United States v.
Tisdale, 264 Fed. App’x. 403 (5th Cir. 2008), relied on by appellant, is not a
revocation sentencing case, involved rejecting a specific argument, and did not
address plain error review.

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