     Case: 14-41329     Document: 00513199274   Page: 1   Date Filed: 09/18/2015




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

                                                                          FILED
                                                                    September 18, 2015
                                No. 14-41329
                              Summary Calendar                         Lyle W. Cayce
                                                                            Clerk


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

v.

AURELIO ZARATE-LOPEZ,

                                          Defendant-Appellant.

cons. w/ No. 14-41330

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

v.

AURELIO ZARATE,

                                          Defendant-Appellant.


                Appeals from the United States District Court
                     for the Southern District of Texas
                          USDC No. 2:12-CR-819-1
                          USDC No. 5:09-CR-108-1
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                                   No. 14-41329 c/w
                                    No. 14-41330

Before KING, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Following his arrest for unlawful restraint, the district court revoked
Aurelio Zarate-Lopez’s (Zarate’s) two terms of supervised release, both of
which were imposed following his conviction for unlawful transportation of
undocumented aliens.         The district court sentenced Zarate to a term of
imprisonment of 24 months with no term of supervised release to follow in the
first case and to a term of imprisonment of six months to be followed by a term
of supervised release of 30 months in the second case. The district court
ordered the sentences to be served consecutively.                Zarate challenges the
sentences imposed on the grounds that the district court reversibly erred in
finding that he committed the Texas offense of attempted kidnapping, which
resulted in a procedurally unreasonable non-guidelines sentence and violated
his right to due process, and plainly erred in basing his sentence upon the need
for just punishment and his need for rehabilitative mental health treatment.
       If a district court finds by a preponderance of the evidence that the
defendant has violated a condition of supervised release, the court “may impose
any sentence that falls within the appropriate statutory maximum term of
imprisonment allowed for the revocation sentence.”                    United States v.
McKinney, 520 F.3d 425, 427 (5th Cir. 2008); see 18 U.S.C. § 3583(e)(3). In
doing so, the district court is directed to consider the relevant factors
enumerated in 18 U.S.C. § 3553(a), including the non-binding policy
statements found in Chapter Seven of the Sentencing Guidelines. See 18
U.S.C. § 3583(e); United States v. Walker, 742 F.3d 614, 616-17 (5th Cir. 2014).


       * 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. 14-41330

      Sentences imposed upon the revocation of supervised release are
reviewed under the “plainly unreasonable” standard. See United States v.
Miller, 634 F.3d 841, 843 (5th Cir. 2011). Under this standard, the court first
evaluates whether the district court procedurally erred and then reviews the
substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard. Id. (citing United States v. Brantley, 537 F.3d 347, 349
(5th Cir. 2008)). A district court procedurally errs when it bases a sentence on
clearly erroneous facts. See Gall v. United States, 552 U.S. 38, 51 (2007). A
factual finding is clearly erroneous if it is implausible in light of the record read
as a whole. See United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001).
      However, when a defendant fails to alert the district court to the specific
alleged error he raises on appeal, this court reviews for plain error only. See
See United States v. Duhon, 541 F.3d 391, 396-97 (5th Cir. 2008). To show
plain error, the appellant must show a forfeited error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 135 (2009). If the appellant makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      In Texas, the offense of kidnapping has two elements: (1) restraint; and
(2) intent to prevent liberation by secretion or deadly force. See Brimage v.
State, 918 S.W.2d 466, 475-76 (Tex. Crim. App. 1994). Zarate does not contest
restraint, and viewing the evidence in the light most favorable to the
Government, the court implicitly found that Zarate intended to move the
victim to a place where she could not be seen and isolate her from anyone who
could be of assistance for the purpose of sexually assaulting her, which is
sufficient to establish the specific intent to prevent liberation. See Laster v.
State, 275 S.W.3d 512, 522-23 (Tex. Crim. App. 2009).


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                                 No. 14-41330

      A district court may not lengthen a prison sentence imposed upon the
revocation of supervised release to provide just punishment for the offense or
to promote rehabilitation. See United States v. Garza, 706 F.3d 655, 657 (5th
Cir. 2013); Miller, 634 F.3d at 844. But no error occurs if the impermissible
factors constitute only a “secondary concern” or “additional justification” for
the sentence selected by the district court. Walker, 742 F.3d at 616-17 (internal
quotation marks and citation omitted). Here, the district court referenced just
punishment and the need for the sentence “to be long enough as well so he can
receive mental health treatment in custody” as reasons for the sentence
imposed.    Thus, the district court erred if those factors affected its
determination of the sentence to be imposed, as Zarate argues on appeal.
However, the district court also highlighted Zarate’s history of recidivism and
assaultive behavior and the need to protect the public and deter similar
assaults. Thus, it is equally possible that the district court considered the need
for just punishment and rehabilitation as additional justifications to Zarate’s
history and characteristics and the need for incapacitation and deterrence. See
United States v. Nava, 762 F.3d 451, 454 (5th Cir. 2014). Because Zarate
cannot unambiguously demonstrate that the district court lengthened his
sentence on the basis of the challenged factors, this claim cannot survive plain
error review. See United States v. Miller, 406 F.3d 323, 336 (5th Cir. 2005).
      AFFIRMED.




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