     Case: 16-11595      Document: 00514171113         Page: 1    Date Filed: 09/26/2017




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

                                    No. 16-11595                                FILED
                                  Summary Calendar                      September 26, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARIA ISABEL REYNA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-363-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Maria Isabel Reyna appeals the sentence imposed upon the revocation of
supervised release. The district court sentenced her above the guidelines
range to 24 months of imprisonment, which was the statutory maximum.
Reyna argues that the sentence is substantively unreasonable because the
district court sentenced her based in part on improper consideration of her
support of a man in prison. According to Reyna, such a consideration fell


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11595     Document: 00514171113     Page: 2   Date Filed: 09/26/2017


                                  No. 16-11595

outside the applicable sentencing factors under 18 U.S.C. § 3553(a) and
constitutes reversible plain error in light of United States v. Chandler, 732 F.3d
434, 437-40 (5th Cir. 2013).
      Plain error review applies to Reyna’s argument because she did not
object to the substantive reasonableness of her sentence in the district court.
See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). An
upward variance is substantively unreasonable if it “(1) does not account for a
factor that should have received significant weight, (2) gives significant weight
to an irrelevant or improper factor, or (3) represents a clear error of judgment
in balancing the sentencing factors.” Chandler, 732 F.3d at 437 (internal
quotation marks and citation omitted). “[A] sentencing error occurs when an
impermissible consideration is a dominant factor in the court’s revocation
sentence, but not when it is merely a secondary concern or an additional
justification for the sentence.” United States v. Rivera, 784 F.3d 1012, 1017
(5th Cir. 2015).
      Reyna has not shown that the district court erred by sentencing her
based on an improper factor. The court raised Reyna’s ongoing relationship to
the man as one of the reasons that she failed to comply with her conditions of
supervised release. Additionally, while the district court made two comments
about Reyna’s relationship to the man, the district court’s main focus in
sentencing Reyna was the nature and circumstances of her supervised release
violations and the fact that she was not deterred by the two-month sentence
she received for her prior revocation of supervised release.
      Unlike Chandler, where an irrelevant and improper factor was the
district court’s primary reason for imposing an upward variance, the district
court’s comments here do not show that Reyna’s relationship to the man, if it
was a factor at all in the sentence, was anything more than a secondary concern



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                                 No. 16-11595

or additional justification for the upward variance. See Rivera, 784 F.3d at
1017; United States v. Walker, 742 F.3d 614, 617 (5th Cir. 2014).
      In her reply brief, Reyna presents the additional argument that the
district court’s information about her relationship with the man should not
have been considered because the defense was not given notice of such
information before the revocation hearing. We do not consider this argument
because it is raised for the first time in Reyna’s reply brief. See United States
v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).
      AFFIRMED.




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