     Case: 12-40038     Document: 00511990347         Page: 1     Date Filed: 09/17/2012




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

                                                                            FILED
                                                                        September 17, 2012
                                     No. 12-40038
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SEVERIANO VALDEZ, III,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:09-CR-192-1


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Severiano Valdez, III, appeals his sentence of 24 months of imprisonment
imposed following the district court’s revocation of his term of probation. He
argues that his sentence is well above the advisory range and was imposed
without stated reasons, and is thus unreasonable.
        Because Valdez did not assert this issue in the district court, we review
for plain error. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
The record reflects that the district court considered the policy statements and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40038   Document: 00511990347     Page: 2    Date Filed: 09/17/2012

                                 No. 12-40038

the recommended sentencing guidelines range.            The advisory range of
imprisonment for Valdez was 4 to 10 months, while the statutory maximum
term of imprisonment was two years. After indicating that Valdez had been
given “a break” at his original sentencing by being sentenced to only probation
for his drug violation, the district court noted Valdez’s continued drug use, the
fact that he declined drug treatment, and the fact that he additionally had a
prior conviction for driving while impaired. The probation officer recommended
that Valdez be sentenced at the top of the advisory range to 10 months, and
Valdez requested a sentence at the bottom of the advisory range of 4 or 6
months.    The district court additionally considered Valdez’s arguments
regarding his gainful employment and generally drug-free record and his
allocution. After considering the arguments and expressing its concerns, the
court concluded that the statutory maximum term of imprisonment of 24 months
was appropriate. The sentence imposed falls within the statutory maximum,
and the record reflects that the district court implicitly considered the policy
statements and the § 3553 factors. See United States v. Kippers, 685 F.3d 491,
498-99 (5th Cir. 2012). Valdez has not demonstrated that the district court
committed a clear or obvious error affecting his substantial rights. See id.;
Whitelaw, 580 F.3d at 265. The judgment is AFFIRMED.




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