     Case: 16-10215      Document: 00513820714         Page: 1    Date Filed: 01/04/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 16-10215
                                                                                Fif h Circuit

                                                                              FILED
                                  Summary Calendar                      January 4, 2017
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellee

v.

DONOVAN SMITH,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-13-1


Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Donovan Smith appeals the district court’s decision to revoke his term of
supervised release.      He argues that the district court erred by failing to
consider substance abuse treatment, in lieu of incarceration, pursuant to 18
U.S.C. § 3583(d) and U.S.S.G. § 7B1.4 (n.6) (p.s.). He also argues that the
district court erred by imposing a 24-month term of imprisonment, which was




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10215      Document: 00513820714   Page: 2   Date Filed: 01/04/2017


                                 No. 16-10215

the statutory maximum and above the guidelines range of 5 to 11 months of
imprisonment.
      As Smith did not raise these arguments in the district court, review is
for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). In
addition to failing drug testing, which would implicate the § 3583(d) exception,
Smith violated the conditions of his supervised release by using and possessing
heroin, cocaine, and morphine, and by refusing to participate in substance
abuse treatment. Smith has failed to show any plain error. See, e.g., United
States v. Harper, No. 01-10623, 2002 WL 494731, at *1-2 (5th Cir. March 15,
2002) (unpublished) (affirming revocation on similar grounds); see also United
States v. Guerrero-Robledo, 565 F.3d 940, 946 (5th Cir. 2009) (“It certainly is
not plain error for the district court to rely on an unpublished opinion that is
squarely on point.”).
      Additionally, the record reflects that the district court considered the
relevant statutory factors in its determination that a guidelines range sentence
would be inadequate. See § 3583(e) (setting forth appropriate § 3553(a) factors
that the district court may consider in the revocation context). Moreover,
Smith’s disagreement with the decision does not demonstrate an abuse of the
district court’s wide sentencing discretion. See United States v. Miller, 634
F.3d 841, 844 (5th Cir. 2011).
      AFFIRMED.




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