     Case: 18-11540      Document: 00515070132         Page: 1    Date Filed: 08/09/2019




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


                                    No. 18-11540
                                                                               FILED
                                                                          August 9, 2019
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RANDY ROSENDO FLORES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:16-CR-17-2


Before HIGGINBOTHAM, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Randy Rosendo Flores appeals the sentence imposed after the revocation
of his supervised release. The district court varied upward from the guidelines
range and sentenced Flores to 18 months of imprisonment. Flores asserts that
the sentence is procedurally unreasonable because the district court failed to
provide an adequate explanation for its selection of sentence.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11540     Document: 00515070132      Page: 2   Date Filed: 08/09/2019


                                  No. 18-11540

      Because Flores failed to challenge the procedural reasonableness of his
sentence in the district court, our review is for plain error. See United States
v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). Flores must show a forfeited
error that is clear or obvious error and affects his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009).
      The record reflects that the district court explicitly considered deterrence
and protection of the public in imposing the revocation sentence. See 18 U.S.C.
§ 3553(a)(2)(B)-(C). The facts underlying the district court’s stated reasons are
implicit in Flores’s admission to the allegations in the revocation petition, i.e.,
the district court plausibly could have been concerned that a person who uses
methamphetamine and avoids drug tests in violation of his supervised release
conditions needs an above-guidelines sentence to deter him and to protect the
public. The record also reflects that the district court implicitly considered
Flores’s history and characteristics. See § 3553(a)(1), Whitelaw, 580 F.3d at
263-64. Thus, the district court committed no clear or obvious error.
      Moreover, any error did not affect Flores’s substantial rights. See United
States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). There is no indication that
a more thorough explanation would have resulted in a lower sentence or that
the district court would impose a different sentence on remand. Whitelaw, 580
F.3d at 264-65. To the extent that Flores argues that Whitelaw was incorrectly
decided and that this court should hold that the failure to explain a sentence
affects a defendant’s substantial rights under plain-error review, his argument
is unavailing. We must adhere to Whitelaw absent en banc reconsideration or
a superseding decision by the Supreme Court. United States v. Lipscomb, 299
F.3d 303, 313 n. 34 (5th Cir. 2002).
      AFFIRMED.




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