     Case: 11-10504     Document: 00511699973         Page: 1     Date Filed: 12/19/2011




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

                                                                            FILED
                                                                        December 19, 2011
                                     No. 11-10504
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALFONSO IBANEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CR-85-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Alfonso Ibanez appeals the 24-month sentence that
was imposed on revocation of his term of supervised release. The sentence is the
statutory maximum and exceeds the recommended guideline range of three to
nine months.
        Ibanez claims that the district court plainly erred in basing his sentence
on a factor that we have held is barred from consideration by 18 U.S.C.
§ 3583(e). See United States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011), cert.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10504    Document: 00511699973      Page: 2    Date Filed: 12/19/2011

                                  No. 11-10504

denied, __ S. Ct.__, 2011 WL 2148772 (Oct. 31, 2011). He asserts that the reason
given by the district court in imposing the 24-month sentence — that the court
believed that Ibanez had “very little respect for his legal obligations” — reflects
that the district court improperly relied on the need to “promote respect for the
law,” a factor listed in 18 U.S.C. § 3553(a)(2)(A), which we held in Miller is
prohibited from consideration under § 3583(e).
      We generally review a sentence imposed on revocation of supervised
release if it is “plainly unreasonable” rather than merely “unreasonable,” as is
the standard of review for other criminal sentences. See id. at 843. When
specific claims of procedural error raised on appeal were not raised in the district
court, as however, our review is for plain error only. See United States v.
Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). Even though Ibanez objected to his
sentence as “unreasonable,” he did not object to his sentence on the ground that
the district court considered a prohibited factor in imposing his sentence. Thus,
our review of his sentence is for plain error only. See id. To establish plain
error, Ibanez must show a forfeited error that is clear or obvious and that affects
his substantial rights. Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423,
1429 (2009).
      In Miller, which was decided before Ibanez’s revocation hearing, 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. Here, the record reflects that revocation of
Ibanez’s supervised release was mandated by § 3583(g) because he violated
express conditions of his supervised release by possessing a controlled substance
and refusing to comply with drug testing. See § 3583(g). 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

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                                  No. 11-10504

1091, 1095 (5th Cir. 1994) (noting that a court need not consider § 3553(a) when
revocation is mandated by § 3583(g)). Thus, Ibanez cannot show that it is “clear
or obvious” that a sentence imposed when revocation of supervised release is
mandatory must be limited by § 3583(e). Cf. United States v. Larison, 432 F.3d
921, 923 n.3 (8th Cir. 2006) (observing that the district court’s sentencing
decision is not constrained by the factors specifically enunciated in § 3583(e)
when revocation is mandated by § 3583(g)). Even if Ibanez’s revocation were
limited by the factors listed in § 3583(e), he has not demonstrated that the
district court’s statement that it believed that Ibanez had “little respect for his
legal obligations” constituted a clear and obvious error, as that statement was
made in the context of Ibanez’s failure to comply with the obligations under the
terms and conditions of his supervised release.
      As Ibanez acknowledges, his contention that his sentence should be
reviewed for reasonableness instead of “plain unreasonableness,” is foreclosed
by Miller. In any event, he asserts that his sentence is “plainly unreasonable”
in light of his ongoing battle against drug addiction and his forthright
admissions regarding his drug usage. There is nothing in the record to suggest
that the 24-month sentence imposed in this case failed to account for a factor
that should have received significant weight or gave significant weight to an
irrelevant or improper factor, see United States v. Smith, 440 F.3d 704, 708 (5th
Cir. 2006).   Neither is the sentence, which does not exceed the statutory
maximum, see § 3583(e)(3), plainly unreasonable. See Miller, 634 F.3d at 843.
      The judgment of the district court is AFFIRMED.




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