     Case: 17-11418      Document: 00514703544         Page: 1    Date Filed: 10/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-11418                       United States Court of Appeals

                                  Summary Calendar
                                                                                Fifth Circuit

                                                                              FILED
                                                                       October 30, 2018

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
                                                 Plaintiff-Appellee

v.

CHRIS LONGORIA HERRERA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-135-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Chris Longoria Herrera appeals the 18-month, above-guidelines range
sentence imposed upon the revocation of his supervised release from his
conviction for conspiracy to distribute, possess with intent to distribute, and
dispense cocaine. The revocation followed Herrera’s plea of true to charges
that he failed five drug tests in five months and possessed cocaine. Herrera
contends that the district court erred by treating revocation as mandatory


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11418

despite the statutory command to consider alternatives to revocation in cases
where a supervised release violation involves failing a drug test. He further
asserts that his 18-month sentence is substantively unreasonable. Because
Herrera did not raise these issues in the district court, we review both issues
for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009); United
States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
      Generally speaking, revocation of supervised release is mandatory if the
defendant, “as a part of drug testing, tests positive for illegal controlled
substances more than 3 times over the course of 1 year[.]”            18 U.S.C.
§ 3583(g)(4).   However, a district court should “consider whether the
availability of appropriate substance abuse treatment programs, or an
individual’s current or past participation in such programs, warrants an
exception in accordance with United States Sentencing Commission guidelines
from the rule of section 3583(g) when considering any action against a
defendant who fails a drug test.” 18 U.S.C. § 3583(d).
      Herrera’s supervised release was revoked based not only on his failed
drug tests but also on his admission that he possessed cocaine on at least three
occasions. We have recently held that when a defendant’s violative conduct
“include[s] more than failing a drug test,” it is “unclear whether [he] qualifies
for the [§ 3583(d)] treatment exception under our existing case law.” United
States v. Brooker, 858 F.3d 983, 986 (5th Cir. 2017). Herrera presents no
binding precedent stating otherwise, which “is often dispositive in the plain-
error context.” United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015).
Thus, whether error occurred in this case is, at best, “subject to reasonable
dispute.”   United States v. Broussard, 669 F.3d 537, 550 (5th Cir. 2012).
Accordingly, Herrera fails to show that the district court clearly or obviously
erred by treating revocation as mandatory. See Puckett, 566 U.S. at 135.



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                                 No. 17-11418

      To prevail on his substantive reasonableness claim, Herrera must show
that his 18-month revocation sentence “(1) does not account for a factor that
should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in
balancing the sentencing factors.” United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006). And under plain error review, he must show that any such
error was clear or obvious. See Puckett, 566 U.S. at 135; United States v.
Peltier, 505 F.3d 389, 391 (5th Cir. 2007).
      Substantive reasonableness review is based on the sentencing factors in
18 U.S.C. § 3553(a). See Peltier, 505 F.3d at 392. However, the “factor” that
Herrera contends the district court failed to account for—the requirement to
consider alternatives to revocation—is found in § 3583(d). He cites no § 3553(a)
factor for which the district court failed to account, to which it gave undue
weight, or that it erred in balancing. See Smith, 440 F.3d at 708. Accordingly,
Herrera fails to show that his sentence was substantively unreasonable, let
alone plainly so. See Puckett, 566 U.S. at 135; Peltier, 505 F.3d at 391.
      The judgment is AFFIRMED.




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