     Case: 19-50052      Document: 00515106099         Page: 1    Date Filed: 09/05/2019




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

                                     No. 19-50052                             FILED
                                   c/w No. 19-50054                   September 5, 2019
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANTHONY IAN LARUE,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 7:18-CR-276-1
                            USDC No. 7:18-CR-277-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Anthony Ian LaRue appeals the 24-month concurrent prison sentences
imposed after the district court revoked his terms of supervised release for the
third time. He contends that the sentences are unreasonable because the
district court impermissibly considered factors set forth in 18 U.S.C.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50052
                                   c/w No. 19-50054

§ 3553(a)(2)(A) in selecting the sentences and because it improperly weighed
the guideline policy statements and the § 3553(a) factors that it was permitted
to consider.
      A revocation sentence is typically reviewed to determine whether it is
“plainly unreasonable.” 1 United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011). Under this standard, we first ask whether the district court committed
any “significant procedural error, such as failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.” United States v. Winding, 817 F.3d
910, 913 (5th Cir. 2016) (internal quotation marks and citation omitted). We
then apply the abuse-of-discretion standard to review the substantive
reasonableness of the sentence. Id. If we determine that the sentence was
unreasonable due to procedural or substantive error, we next “consider[]
‘whether the error was obvious under existing law.’” Id. (quoting Miller, 634
F.3d at 843).
      A revocation sentence is substantively unreasonable where the district
court did not take into account a factor that should have received significant
weight, gave significant weight to an irrelevant or improper factor, or made a
clear error in judgment when balancing the sentencing factors. United States
v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). A district court imposing sentence
in connection with a revocation under § 3583(e) is directed to consider the
sentencing factors delineated in § 3553(a), including, inter alia, the non-
binding policy statements in Chapter 7 of the Guidelines. United States v.


      1  The Government argues that review is only for plain error because LaRue did not
object to the reasonableness of his revocation sentence in the district court. We need not
decide whether LaRue’s arguments were preserved because they are unavailing under the
plainly unreasonable standard. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir.
2008); see also United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).


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                                  No. 19-50052
                                c/w No. 19-50054

Mathena, 23 F.3d 87, 90-93 (5th Cir. 1994). However, § 3583(e) omits from its
directive the factors set forth in § 3553(a)(2)(A)—i.e., 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—and, thus, a district court may not
principally rely on § 3553(a)(2)(A) in a revocation proceeding pursuant to
§ 3583(e). See United States v. Walker, 742 F.3d 614, 616 (5th Cir. 2014);
Miller, 634 F.3d at 844.
      Though the district court did not explicitly refer to any § 3553(a)(2)(A)
factor, LaRue maintains that the district court made remarks that suggested
that it relied improperly on the need for the sentence to reflect the seriousness
of the offense and to promote respect for the law. This claim is belied by the
record, however, which reveals that the district court explained clearly and
adequately that it was imposing the prison sentences because LaRue’s conduct
had shown that he could not comply with supervised release conditions, a
factor upon which the district court could permissibly rely in fashioning a
revocation sentence. See Warren, 720 F.3d 332-33 (5th Cir. 2013); United
States v. Rivera, 797 F.3d 307, 308-09 (5th Cir. 2015); United States v.
Guemrany-Reyes, 733 F. App’x 216, 217-18 (5th Cir. 2018).           Under these
circumstances, we cannot conclude that LaRue’s sentence was plainly
unreasonable. See Warren, 720 F.3d at 332-33. Accordingly, the judgments of
the district court are AFFIRMED.




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