     Case: 18-40816      Document: 00514912658         Page: 1    Date Filed: 04/11/2019




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

                                      No. 18-40816                             FILED
                                                                           April 11, 2019
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

v.

MICHELLE ROSALES,

              Defendant-Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-859-1


Before JONES, HO, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Michelle Rosales violated the terms of her supervised release.                          The
district court sentenced her to 20 months in prison. Rosales appeals. We
affirm.
                                             I.
       Rosales pleaded guilty to smuggling illegal aliens and was sentenced to
four months of imprisonment and three years of supervised release. During


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40816
her term of supervised release, Rosales was again arrested for smuggling
aliens.    That conduct violated the terms of her supervised release. 1
Accordingly, the district court held a revocation hearing.
       At the hearing, the probation officer stated that the Guidelines range for
Rosales’s supervised-release violation was six to twelve months. The district
court asked whether two years was the maximum sentence. The probation
officer confirmed it was. The district court also inquired, however, what the
Guidelines range would have been if Rosales had been indicted and charged
for the second alien-smuggling arrest. The probation officer replied the range
would be twenty-four to thirty months for that offense.
       During the colloquy, the probation officer suggested the district court
revoke Rosales’s supervised release and impose a sentence of six months’
imprisonment. Rosales countered that a four-month sentence of imprisonment
and a two-month stint in a halfway house would be appropriate.
       The district court rejected both suggestions. The court noted it “gave
[Rosales] a break” by adopting “the low end of the Guidelines last time,” which
turned out to be “a mistake.” Accordingly, the district court was “[n]ow . . .
looking at protecting the public.” It therefore revoked Rosales’s supervised
release and sentenced her to 20 months’ imprisonment with no additional term
of supervised release. Rosales timely appealed.
                                            II.
       Rosales argues the district court improperly considered the factors listed
in 18 U.S.C. § 3553(a)(2)(A) when it imposed her revocation sentence. She also
challenges the substantive reasonableness of her sentence. We discuss each



       1 Although Rosales was not charged for this offense, her conditions of supervised
release required that she commit no new law violations and refrain from associating with
persons engaged in criminal activity. The parties agree that Rosales’s conduct constitutes a
violation of those terms.
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                                  No. 18-40816
argument in turn.
                                        A.
      Before the district court, Rosales objected only that the revocation
sentence was greater than necessary. She never argued the district court
considered improper factors. We therefore review her first argument for plain
error. United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
                                        1.
      To demonstrate the district court plainly erred, Rosales must show: (1) a
forfeited error that is (2) “clear or obvious, rather than subject to reasonable
dispute,” and that (3) “affected [her] substantial rights.” Puckett v. United
States, 556 U.S. 129, 135 (2009). Only if “those three conditions have been
met”—and “if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings”—may we “exercise [our] discretion to
correct the forfeited error.” Rosales-Mireles v. United States, 138 S. Ct. 1897,
1905 (2018) (internal quotation marks omitted).
      When imposing a revocation sentence, a district court should consider
certain § 3553 factors. See 18 U.S.C. § 3583(e). It cannot, however, rely on
§ 3553(a)(2)(A) factors—the sentence cannot be imposed “to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.” Id. § 3553(a)(2)(A); see United States v. Miller,
634 F.3d 841, 844 (5th Cir. 2011). Although these factors can be “a secondary
concern or an additional justification for the sentence,” they cannot be a
“dominant” consideration. United States v. Rivera, 784 F.3d 1012, 1017 (5th
Cir. 2015); see United States v. Sanchez, 900 F.3d 678, 684 n.5 (5th Cir. 2018)
(“Mere mention of impermissible factors is acceptable; to constitute reversible
error, our circuit has said, the forbidden factor must be ‘dominant.’ ”).




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                                 No. 18-40816
                                       2.
      Rosales argues the district court impermissibly relied on § 3553(a)(2)(A).
And she contends this factor was a dominant consideration in the district
court’s analysis. We know this is so, she argues, because the district court
engaged in a lengthy colloquy during the revocation hearing regarding the
Guidelines range for alien smuggling (as opposed to the range for violating the
terms of supervised release).
      This argument fails. For starters, the district court never stated it was
basing its sentencing decision on a perceived need to punish Rosales. Instead,
it explicitly based its sentence on other considerations:
      It’s my opinion that I gave you a break when I gave you half the
      low end of the Guidelines last time without a 5K. Obviously, that
      was a mistake on my part. Now I’m looking at protecting the
      public. I’ve looked at the Guidelines for this, the Advisory
      Guidelines for this, and I’m very concerned with the protection of
      the public. Your criminal conduct clearly has not been deterred.
      It’s the same exact criminal conduct as your last.
      I’m going to revoke your supervised release based on protecting the
      public and deter—and not as a deterrence, but really based on
      protection of the public. This is particularly egregious behavior
      and I’m going to revoke your supervised release to 20 months
      followed by no supervised release.
      The record thus demonstrates the court based its sentence primarily on
need to protect the public and, to a lesser extent, Rosales’s tendency towards
recidivism and her breach of the district court’s trust. These are permissible
considerations in a revocation hearing.         See 18 U.S.C. § 3553(a)(2)(C)
(enumerating the need “to protect the public from further crimes of the
defendant”); U.S.S.G. Ch. 7, Pt. A, intro. comment 3(b) (“[A]t revocation the
court should sanction primarily the defendant’s breach of trust, while taking
into account, to a limited degree, the seriousness of the underlying violation
and the criminal history of the violator.”); United States v. Smith, 672 F. App’x

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                                 No. 18-40816
481, 482 (5th Cir. 2017) (per curiam) (concluding the district court properly
considered “the need to address [the defendant’s] tendency towards recidivism
and the risk his continuing offenses posed to the public”).
      It does not matter that the district court asked about the Guidelines
range associated with smuggling aliens.       We have affirmed a revocation
sentence on materially identical facts.     See United States v. Hernandez-
Martinez, 485 F.3d 270, 271–72 (5th Cir. 2007) (affirming a revocation
sentence where the district court “inquired what the Guidelines sentence for
illegal reentry would have been” if the defendant had been prosecuted and
convicted for that offense). If anything, this is an easier case than Hernandez-
Martinez. There the district court imposed a revocation sentence within the
Guidelines range for the uncharged crime of illegal reentry, which might
suggest punishment for that conduct was the district court’s dominant
purpose. See id. at 272. Here by contrast, the district court sentenced Rosales
below the hypothetical Guidelines range for alien smuggling, which makes it
even more tenuous to suggest the court was motivated by a desire to punish
her for the uncharged conduct.
      Moreover, the district court’s inquiries were, at most, “passing remarks”;
they were not the “main focus throughout the hearing.” Rivera, 784 F.3d at
1017. Even when asking for the hypothetical Guidelines range, the district
court seemed most concerned with the dangerous nature of Rosales’s conduct—
that she “reckless[ly] endanger[ed]” the lives of the two aliens she
“stuff[ed] . . . under the floorboards of a minivan.” That further suggests the
district court was mainly motivated by a desire to protect the public.
                                       B.
      Rosales’s challenge to the substantive reasonableness of her revocation
sentence also fails. She did, however, preserve this objection. Accordingly, we
review her revocation sentence “for an abuse of discretion, examining the
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                                  No. 18-40816
totality of the circumstances.” United States v. Warren, 720 F.3d 321, 332 (5th
Cir. 2013). To be substantively unreasonable, the sentence must: (1) “not
account for a factor that should have received significant weight, (2) give[ ]
significant weight to an irrelevant or improper factor, or (3) represent[ ] a clear
error of judgment in balancing the sentencing factors.” Id. (quoting United
States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007)).
      Rosales argues that the district court’s “reliance on improper factors
renders the sentence substantively unreasonable.” But, as already discussed,
the record does not show that the court gave significant weight to an improper
factor. Moreover, Rosales’s 20-month revocation sentence does not exceed the
statutory maximum.       We therefore conclude the revocation sentence is
substantively reasonable.
      The judgment and sentence are AFFIRMED.




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