     Case: 11-10109     Document: 00511632636         Page: 1     Date Filed: 10/14/2011




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

                                                                            FILED
                                                                         October 14, 2011
                                     No. 11-10109
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

IRIS RIVERA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:03-CR-95-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Iris Rivera appeals her sentence of 18-months’ imprisonment imposed
upon revocation of her supervised release, a sentence above the suggested
Sentencing Guidelines range.            Rivera contends the sentence is “plainly
unreasonable” because the district court considered her socioeconomic status
when selecting the sentence. Rivera points to the following statement by the
district court to support her contention: “This particular defendant, it’s



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10109

perplexing to me because she comes from a home which is a home of privilege,
and, yet, she made some bad choices.”
      Revocation sentences are ordinarily reviewed under a “plainly
unreasonable standard”. United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011), petition for cert. filed (May 27, 2011) (No. 10-10784). But, although Rivera
objected to her sentence as being procedurally and substantively unreasonable,
the specific basis for Rivera’s claim here—that her socioeconomic status was
improperly considered—was not stated in district court. See United States v.
Dunigan, 555 F.3d 501, 506 (5th Cir. 2009) (where defendant fails to object on
specific grounds to the reasonableness of the sentence, thereby denying the court
the opportunity to identify and correct any errors, review is only for plain error).
Because Rivera did not preserve her claim in district court, it is subject only to
plain-error review. E.g., Puckett v. United States, 129 S. Ct. 1423, 1428-29
(2009); Dunigan, 555 F.3d at 506; United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007).
      To establish reversible plain error, Rivera must show a clear or obvious
error affecting her substantial rights. E.g., Puckett, 129 S. Ct. at 1429. Even if
plain reversible error is shown, our court retains discretion to correct the error
and will do so only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings”. Id. (citation and internal quotation marks
omitted).
      Congress has required that the Guidelines be “entirely neutral” regarding
an offender’s socioeconomic status. 28 U.S.C. § 994(d).         To that end, the
Guidelines state that socioeconomic status is irrelevant to sentence selection.
U.S.S.G. § 5H1.10; see also United States v. Peltier, 505 F.3d 389, 393-94 (5th
Cir. 2007).
      Rivera contends her claim is governed by United States v. Hatchett, 923
F.2d 369, 375 (5th Cir. 1991), overruled on other grounds by United States v.
Calverley, 37 F.3d 160, 162-63 & n.20 (5th Cir. 1994), in which our court vacated

                                         2
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                                  No. 11-10109

sentences because it could not determine whether the sentences had been
influenced by the socioeconomic status of the four defendants. But, the district
court in Hatchett explicitly sentenced two of the defendants based on their
socioeconomic status and did so implicitly for the other two. Id. at 373. For
Rivera, the district court neither stated nor implied it was imposing an 18-month
sentence because of Rivera’s privileged background. The district court merely
expressed its being perplexed that, given her background, Rivera had made the
“bad choices” that had involved her in the drug culture. The district court
explicitly stated it chose the sentence it did because “the only thing [the court]
can do is impose a sentence which will invoke some type of a consequence for
[Rivera’s] actions” in violating her supervised release.
      In any event, the district court’s “strong emphasis” on needing
consequences for wrongful actions shows any “reliance on socioeconomic status
[was] neither [clear or obvious error] nor so essential to the judgment as to affect
[Rivera’s] substantial rights”. Peltier, 505 F.3d at 393-94. Consequently, Rivera
has not shown reversible plain error for her claim that her 18-month sentence
was imposed because of her socioeconomic status. See Puckett, 129 S. Ct. at
1429; Peltier, 505 F.3d at 393-94.
      AFFIRMED.




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