     Case: 11-11112     Document: 00512033567         Page: 1     Date Filed: 10/26/2012




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

                                                                            FILED
                                                                         October 26, 2012
                                     No. 11-11112
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAROLD ELLSWORTH,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:01-CR-30-1


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
        Darold Ellsworth appeals the 18-month sentence that was imposed on
revocation of his term of supervised release. Ellsworth argues that the district
court improperly considered the factor of punishment in 18 U.S.C.
§ 3553(a)(2)(A) as a basis for imposing a sentence substantially higher than the
policy statement required. He asserts that the district court indicated that it
was issuing a sentence based in part upon punishment, which improper
consideration likely exerted upward pressure on the sentence. Ellsworth states

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-11112

that the district court “meant it was punishing him for his technical violations
of supervised release, a factor plainly forbidden by this Court to consider.”
      We review a sentence imposed on revocation of supervised release to
determine if it is “plainly unreasonable.” United States v. Miller, 634 F.3d 841,
843 (5th Cir. 2011). In Miller, we held that it is improper for a district court to
rely on § 3553(a)(2)(A), which permits a sentencing court to consider the need for
the sentence “to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense,” when modifying or revoking
a term of supervised release. Miller, 634 F.3d at 844.
      In response to Ellsworth’s objection, the district court clarified the context
in which it used the term “punishment,” meaning punishment for violating the
terms of his supervised release. As the Government correctly notes, “the goal of
revocation is to punish a defendant for violating the terms of the supervised
release.” Miller, 634 F.3d at 843. The district court’s reference to punishment
did not amount to an improper consideration of the just punishment factor of
§ 3553(a)(2)(A) that we held was improper in Miller.
      Further, Ellsworth’s supervised release was revoked under § 3583(e) and
(g), because one of the violations to which he pleaded true was failure to comply
with the drug testing requirement, a mandatory revocation violation under
§ 3583(g)(3). Section 3583(g) does not expressly invoke the sentencing factors of
§ 3553(a) or the limits imposed by the first clause of § 3583(e). See § 3583(g);
United States v. Giddings, 37 F.3d 1091, 1095 (5th Cir.1994) (noting that a court
need not consider § 3553(a) when revocation is mandated by § 3583(g)).
Ellsworth has not shown that the district court procedurally erred because when
revocation of supervised release is mandatory under § 3583(g), the factors a
sentencing court may consider is not limited by § 3583(e). See United States v.
Larison, 432 F.2d 921, 923 n.3 (8th Cir. 2006); cf. United States v. Holmes, 473
F. App’x 400, 401 (5th Cir. 2012) (reviewing for plain error); United States v.



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                                  No. 11-11112

Ibanez, 454 F. App’x 328, 330 (5th Cir. 2011) (same), cert. denied, 132 S. Ct. 1981
(2012).
      The judgment of the district court is AFFIRMED.




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