     Case: 11-40541     Document: 00511913954         Page: 1     Date Filed: 07/09/2012




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

                                                                            FILED
                                                                            July 9, 2012

                                       No. 11-40541                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee
v.

EMILY TOVAR,

                                                  Defendant–Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. L-07-CR-405


Before KING, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant–Appellant Emily Tovar appeals the district court’s judgment
revoking her term of supervised release and sentencing her to seven months of
imprisonment. For the reasons stated herein, we AFFIRM.
              I. FACTUAL AND PROCEDURAL BACKGROUND
        In 2007, Defendant–Appellant Emily Tovar (“Tovar”) pleaded guilty to the
charge of transporting an undocumented alien within the United States by
means of a motor vehicle for private financial gain, in violation of 8

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40541

U.S.C. § 1324(a)(1)(B)(i) and 18 U.S.C. § 2. Tovar was sentenced to ten months’
imprisonment, to be followed by three years of supervised release. Among other
things, Tovar’s conditions of supervised release required her to refrain from
committing new offenses and to report to her probation officer within 72 hours
of an arrest. Tovar began her supervised release term in August 2008.
       In October 2010, Tovar was arrested by U.S. Border Patrol agents for
transporting undocumented aliens by means of a motor vehicle for private
financial gain in violation of 8 U.S.C. § 1324(a)(1)(B)(i). The next month, the U.S.
Probation Office filed a petition to revoke Tovar’s supervised release, based in
part upon this new offense and in part upon her failure to timely report the
October 2010 arrest to her probation officer.1 The government also filed a new
indictment against Tovar based upon the October 2010 arrest.
       In April 2011, Tovar appeared for her revocation hearing before the
district court, which was conducted at the same time as her sentencing for the
new offense of transporting undocumented aliens. At the hearing, Tovar
admitted that she had violated the conditions of her supervised release by
committing a new criminal offense and by failing to timely report her arrest to
her probation officer. The district court imposed a seven month imprisonment
term upon revocation of supervised release, to be served consecutively to a
twenty-one month sentence with respect to Tovar’s new offense. Tovar did not
object to the imposition of the sentence. This appeal followed.
                            II. STANDARD OF REVIEW
       We review sentences imposed following revocation of supervised release
under the “plainly unreasonable” standard stated in 18 U.S.C. § 3742(a). See
United States v. Miller, 634 F.3d 841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496


       1
         The revocation petition was also based upon Tovar’s failure to participate in anger
management classes and association with a convicted felon. The district court, however, based
its revocation determination solely upon the violations discussed herein.

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                                    No. 11-40541

(2011). Because Tovar did not object to her sentence in the district court, our
review in this case is limited to plain error. United States v. Jackson, 559 F.3d
368, 372 (5th Cir. 2009). Under this standard, Tovar must show “(1) an error; (2)
that is plain; and (3) that affected [her] substantial rights.” Id. (citation omitted).
If the first three elements of plain error are satisfied, then “we may exercise our
discretion to correct the error if it ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” United States v. John, 597 F.3d 263,
285 (5th Cir. 2010) (alteration in original) (citing Puckett v. United States, 556
U.S. 129, 135 (2009)). “Meeting all four prongs of plain-error review is difficult,
as it should be.” Id. (citation and internal quotation marks omitted).
                                III. DISCUSSION
      When a district court revokes a defendant’s supervised release and
imposes a term of imprisonment, it may impose any sentence that falls within
the statutory maximum term of imprisonment allowed for a revocation sentence.
See 18 U.S.C. § 3583(e)(3). In imposing a sentence, however, the district court
must consider the factors enumerated under 18 U.S.C. § 3553(a). See 18 U.S.C.
§ 3583(e). In United States v. Miller, 634 F.3d 841 (5th Cir. 2011), we addressed
whether this directive extends to the factors listed in § 3553(a)(2)(A), which
requires a court to consider the need for the sentence imposed “to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). We observed that
“Congress deliberately omitted that factor from the permissible factors
enumerated in [§ 3583(e)],” and therefore concluded that “it is improper for a
district court to rely on § 3553(a)(2)(A) for the modification or revocation of a
supervised release term.” Miller, 634 F.3d at 844. On appeal, Tovar contends
that the district court violated Miller and committed plain error because it
considered the § 3553(a)(2)(A) factors when it imposed the seven month sentence
after it revoked her supervised release.

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      As noted above, the district court imposed Tovar’s revocation sentence
during the same hearing at which it imposed her sentence for the new criminal
offense. After considering various other factors, such as Tovar’s criminal history,
the need to deter future criminal conduct, and the need to protect the public, the
court explained:
      What I’m going to do in this particular case is, I’m going to impose
      a sentence for the underlying conviction at the—at the high end of
      the guideline range to provide proper deterrence to you. I believe
      that the Court should also impose a sentence at the middle of the
      guideline range for the supervised release violation.

      If this were the first time that you were appearing—or the second
      time that you were appearing before the Court on this type of
      conduct, perhaps a lower sentence on the supervised release
      violation might be warranted, but it’s—it’s not. So, therefore, the
      Court believes that to impose an appropriate sentence that provides
      just punishment, the total term of incarceration of 28 months will
      be necessary in this case.
The court then announced a twenty-one month sentence with respect to the
violation of § 1324(a)(1)(B)(i) and a consecutive seven month sentence for Tovar’s
supervised release violation. After reviewing the sentencing transcript, it is
simply unclear to us whether the district court incorrectly relied upon the “just
punishment” factor of § 3553(a)(2)(A) when it imposed Tovar’s seven month term
of imprisonment.
      Nevertheless, if we assume arguendo that the district court erroneously
considered the “just punishment” factor, Tovar’s claim must fail because she has
not demonstrated that the district court’s assumed error affected her substantial
rights. “In the sentencing context, we have held that an appellant can show an
impact on substantial rights—and therefore a basis for reversal on plain error
review—where the appellant can show a reasonable probability that, but for the
district court’s error, the appellant would have received a lower sentence.”
United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). To meet this burden,

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“the defendant [must] show that the error actually did make a difference: if it is
equally plausible that the error worked in favor of the defense, the defendant
loses; if the effect of the error is uncertain so that we do not know which, if
either, side it helped the defendant loses.” United States v. Mares, 402 F.3d 511,
521 (5th Cir. 2005) (citation and internal quotation marks omitted). Tovar bears
the burden of establishing reasonable probability. See Davis, 602 F.3d at 647-48;
United States v. Olano, 507 U.S. 725, 734 (1993).
       To meet her burden, Tovar argues only that “[i]t is clear from the record
that the district court intended to get Ms. Tovar’s attention and/or punish her.”
The record is at best ambiguous on this point.2 After discussing Tovar’s anger
management issues and certain familial obligations, the court explained that it
would impose “a pretty significant sentence” to “get [Tovar’s] attention,” in light
of her previous offenses, and noted that the sentence might have been lower if
this was the “first time . . . or the second time” that she appeared in court. In
stating that it needed to get Tovar’s attention, the court further explained, “in
other words, I need to deter you from future criminal conduct, as well as others
that might be inclined to engage in similar behavior. And the Court needs to
protect the public.” These are valid considerations upon revocation of supervised
release. See 18 U.S.C. § 3553(a)(2)(B), (C). The court also explained that Tovar
was “going down the wrong path,” and that a reduced sentence would not help
her. Although the court specifically cited Tovar’s recidivism when it imposed her
revocation sentence, it is unclear whether this reflects the court’s intent to
punish Tovar or instead its desire to afford adequate deterrence and to protect
the public, as it stated at other times during the sentencing hearing. Tovar



       2
         As the district court imposed Tovar’s sentence for her new offense at the same time
that it imposed her revocation sentence, it did not clearly separate the rationales underlying
each imprisonment term. For purposes of this appeal, we assume that the district court’s
justifications are equally applicable to both sentences.

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                                  No. 11-40541

cannot satisfy her burden by relying upon such ambiguity or uncertainty in the
record. See Mares, 402 F.3d at 521; see also United States v. Campo–Ramirez,
379 F. App’x 405, 409 (5th Cir. 2010) (“[E]vidence cannot be of ambiguous or
uncertain effect; the defendant must prove that the error affected the sentencing
outcome.”) (citation and internal quotation marks omitted).
      This case is unlike United States v. Hudson, 457 F. App’x 417 (5th Cir.
2012), where a panel of this court found that a district court’s erroneous use
of the § 3553(a)(2)(A) factors affected the defendants’ substantial rights. Id. at
419-20. There, the district court listed “factors it ‘should consider’ under 3553(a)
in pronouncing the sentence,” but actually “discussed only two facts expressly
not permitted to be considered under Miller—the seriousness of the offense and
punishment.” Id. at 419. Here, in contrast, the district court made one
unambiguous reference to “just punishment,” and otherwise relied upon
permissible    considerations,    including   Tovar’s     personal   history   and
characteristics, the need for adequate deterrence, and the need to protect the
public. See 18 U.S.C. § 3553(a)(1), (a)(2)(B), (C). These other factors all support
the seven month sentence that the district court imposed, which was within the
Guidelines range of four to ten months and well below the two year maximum.
See 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4.
      Because Tovar has failed to demonstrate that the district court’s reference
to “just punishment” affected her substantial rights, she has failed to establish
plain error. See United States v. Jackson, 559 F.3d 368, 372 (5th Cir. 2009). We
must therefore affirm her sentence.
                               IV. CONCLUSION
      For the foregoing reasons, the district court’s judgment of conviction and
sentence is AFFIRMED.




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