     Case: 16-50903       Document: 00514172911         Page: 1     Date Filed: 09/27/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                     No. 16-50903                                 FILED
                                   Summary Calendar                       September 27, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                  Clerk


                                                  Plaintiff - Appellee

v.

GEORGE LORENZO, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:09-CR-25-1


Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
       George Lorenzo, Jr., challenges the 24-month, above-Sentencing
Guidelines sentence imposed upon revocation of his supervised release,
stemming from his child-pornography conviction, pursuant to 18 U.S.C.
§ 2252A. The sentence was imposed after six violations of his supervised
release, including, inter alia: soliciting a prostitute and possessing child
pornography. Lorenzo asserts the court committed reversible error in not


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-50903     Document: 00514172911     Page: 2   Date Filed: 09/27/2017


                                  No. 16-50903

adequately explaining its reasons for the 14-month upward variance from the
Guidelines range of 4–10 months. U.S.S.G. § 7B1.4(a).
      As Lorenzo concedes, because he did not raise this issue in district court,
review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537,
546 (5th Cir. 2012). Under that standard, Lorenzo must show a forfeited plain
(clear or obvious) error that affected his substantial rights. E.g., Puckett v.
United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion
to correct the reversible plain error, but generally should do so only if it
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.
      “Under plain error review, a district court commits clear and obvious
error when it fails to state reasons for a sentence outside the guidelines range.”
United States v. Kippers, 685 F.3d 491, 498 (5th Cir. 2012). To be sufficient,
the explanation must “satisfy the appellate court that [the district court] has
considered the parties’ arguments and has a reasoned basis for exercising [its]
own legal decisionmaking authority”. Rita v. United States, 551 U.S. 338, 356
(2007). Our court has affirmed sentences where the court’s reasoning was
implied through consideration of arguments from counsel, e.g., United States
v. Benton, 630 F. App’x 321, 321 (5th Cir. 2015) (unpublished), cert. denied, 136
S. Ct. 1694 (2016), and when, “without any additional explanation, [the court]
explicitly identified deterrence and protection of the public as the reasons for
imposing the sentence”. United States v. Salinas, 684 F. App’x 408, 410 (5th
Cir. 2017) (unpublished).
      There was clear or obvious error. Kippers, 685 F.3d at 498. The court
provided no reasons, explicit or implicit, for imposing a revocation sentence 14
months above the Guidelines range.




                                        2
    Case: 16-50903     Document: 00514172911      Page: 3    Date Filed: 09/27/2017


                                  No. 16-50903

      Nonetheless, assuming arguendo Lorenzo can show the court’s error
affects his substantial rights, the error does not “seriously affect[] the fairness,
integrity or public reputation of judicial proceedings”. Puckett, 556 U.S. at 135.
Although Lorenzo’s revocation sentence is above the Guidelines range, it is
within the statutory maximum. 18 U.S.C. § 2252A(b)(2) (providing a 10 or 20
year statutory maximum).       Moreover, given the nature of his supervised-
release violations, especially his possessing child pornography (he was
originally sentenced for such an offense), “there is sufficient evidence in the
record showing that the incorrect sentence was nevertheless fair”. United
States v. Brown, 826 F.3d 835, 841 (5th Cir. 2016). Accordingly, Lorenzo
cannot show the error is sufficiently “rare” and “egregious” or conscious-
shocking to warrant plain-error correction. United States v. Scott, 821 F.3d
562, 571 (5th Cir. 2016).
      AFFIRMED.




                                         3
