     Case: 16-50416      Document: 00513911281         Page: 1    Date Filed: 03/14/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fif h Circuit
                                    No. 16-50416                                   FILED
                                  Summary Calendar                           March 14, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HECTOR TORRES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-836-1


Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM: *
       Hector Torres appeals as substantively unreasonable his 10-month
prison term and 26-month additional term of supervised release imposed upon
the revocation of his supervised release. He faults the district court for basing
the revocation sentence in part on a finding that a state charge against him
was pending when, in fact, it had been dropped; for neglecting to take into
account various mitigating factors; and for too harshly penalizing him for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50416

failing to communicate effectively with his probation officer. Because Torres
did not object to the revocation sentence in the district court, our review is for
plain error only. See United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013).
      The district court referenced Torres’s state charge only in the context of
ordering his revocation sentence to be served consecutively to any state
sentence he might receive, which is consistent with the policy statement in the
Guidelines. See U.S.S.G. Ch. 7, Pt.B, intro. comment. The court did not
mention any pending charges when explaining the factors it considered in
determining the revocation sentence. Moreover, Torres’s assertion that the
district court did not adequately consider mitigating factors does not
demonstrate that the court improperly exercised its wide discretion in
imposing a revocation sentence. See United States v. Miller, 634 F.3d 841, 843
(5th Cir. 2011). His remaining arguments amount to a disagreement with the
balance among the sentencing factors that the district court struck, but we will
not reweigh those factors. See Gall v. United States, 552 U.S. 38, 51 (2007).
      Generally, a revocation sentence, like Torres’s, that falls within the
maximum possible sentence does not constitute plain error, see United States
v. Whitelaw, 580 F.3d 256, 265 (5th Cir. 2009), and there is nothing in the
record to suggest that Torres’s case presents an exception to this general rule,
see Warren, 720 F.3d at 332. Indeed, the district court listened to Torres’s
arguments and, in imposing the revocation sentence, explicitly considered the
Chapter Seven policy statements and the relevant 18 U.S.C. § 3553(a)
sentencing factors. See United States v. McKinney, 520 F.3d 425, 427-28 (5th
Cir. 2008); 18 U.S.C. § 3583(e)(3). Torres has not shown that the district failed
to 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




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                               No. 16-50416

judgment when balancing the sentencing factors. See Warren, 720 F.3d at 332.
The district court’s judgment is AFFIRMED.




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