     Case: 17-50898      Document: 00514785392         Page: 1    Date Filed: 01/08/2019




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

                                                                         FILED
                                      No. 17-50898                 January 8, 2019
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


                                                 Plaintiff-Appellee

v.

HERON PENA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:11-CR-649-1


Before JONES, HAYNES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Heron Peña appeals his statutory-maximum sentence of twenty-four
months, which was imposed following the revocation of his supervised release.
For the first time on appeal, he argues the district court erred in two ways.
First, he claims the district court based his sentence on unsupported
allegations. Second, the district court imposed an above-guidelines revocation
sentence, which Peña argues it did not sufficiently explain. We reject these
arguments and AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50898

      In 2012, Peña pleaded guilty to possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to sixty months’
imprisonment and three years’ supervised release. He began serving his term
of supervised release in April 2016.
      From May 2016 through March 2017, Peña’s probation officer filed
several reports of Peña’s noncompliance with the terms of his supervised
release. The officer reported that Peña threatened a psychiatrist, failed to take
prescribed medications, became aggressive with a work supervisor, used
methamphetamine, failed to pay a twenty-five-dollar special assessment,
failed to maintain steady employment, and failed to attend a cognitive life-
skills program. After the third report of noncompliance, the district court
ordered a revocation hearing.
      At the March revocation hearing, the district court described those
allegations to Peña and asked him, “Are those facts true?” Peña responded,
“Yes, sir.” Despite Peña’s many violations, the district court used its discretion
to give him another opportunity and returned him to supervised release.
      Peña again violated the terms of his supervised release. The probation
officer reported that Peña failed a drug test, submitted a diluted drug test,
failed to complete the cognitive life-skills program, failed to work regularly at
a lawful occupation, and failed to pay the twenty-five-dollar special
assessment. The district court set another revocation hearing for September.
      At the September 2017 revocation hearing, Peña was informed of similar
allegations to those in the March 2017. This time, he equivocated on the
allegations that he threatened anyone and failed to complete the cognitive life-
skills program. The district court found him in violation of the terms of his
supervised release and sentenced him above the recommended guidelines




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                                  No. 17-50898

range to the statutory maximum of twenty-four months. Now, for the first time
on appeal, Peña argues that the sentence was erroneous.
      Because Peña did not object in the district court, review is only for plain
error. United States v. Walker, 742 F.3d 614, 616 (5th Cir. 2014). To show
plain error, Peña must identify an error that was clear or obvious and affects
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If he does so, we have discretion to correct the error but only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.
(alteration in original) (internal quotation marks and citation omitted).
      Peña has not shown that the district court relied on unsupported
allegations. The record shows that the district court based the revocation
sentence on Peña’s current supervised release violations, as well as his history
of noncompliance on supervised release. See United States v. Kippers, 685 F.3d
491, 497 (5th Cir. 2012). Peña argues that decision was error because the
district court could not rely on admissions from the March revocation hearing
during the September revocation hearing. Peña offers no authority for the
proposition that a judge cannot rely on a defendant’s own admissions in the
same case, on the same issue, just because they were made earlier in the year.
Thus, any purported error in doing so cannot be plain. See United States v.
Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (noting that plain
error must be “clear or obvious, rather than subject to reasonable dispute”);
United States v. Lucas, 849 F.3d 638, 645 (5th Cir. 2017) (“An error is not plain
under current law if a defendant’s theory requires the extension of precedent.”
(internal quotation marks omitted) (quoting United States v. Trejo, 610 F.3d
308, 319 (5th Cir. 2010))).
      Peña has also failed to show that the district court failed to explain the
above-guidelines sentence.     The district court reviewed Peña’s supervised



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                                 No. 17-50898

release history and noted that Peña returned to prison twice because he was
aggressive and would not follow instructions, that Peña had been given three
chances with different programs, and that he had not shown any improvement
over the course of his supervised release. The district court further stated that
Peña had “earned” the twenty-four-month, above-guidelines sentence. The
district court’s reasons were adequate in view of the record as a whole. See
Rita v. United States, 551 U.S. 338, 356–58 (2007). Thus, Peña has not shown
any error, much less clear or obvious error. Further, Peña has not shown that
any supposed error affected his substantial rights.       See United States v.
Whitelaw, 580 F.3d 256, 262–65 (5th Cir. 2009).
      AFFIRMED.




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