     Case: 16-11262      Document: 00514099886         Page: 1    Date Filed: 08/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 16-11262                                 FILED
                                  Summary Calendar                          August 2, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERTO RENE RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:07-CR-328-1


Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM: *
       Roberto Rene Rodriguez has appealed the 30-month term of
imprisonment imposed by the district court following the revocation of his
supervised release period.         He asserts that the sentence is procedurally
unreasonable because the district court improperly considered factors listed in
18 U.S.C. § 3553(a)(2)(A). Additionally, he maintains that the district court’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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11262

consideration   of   those   factors   rendered   his   sentence    substantively
unreasonable.
      Ordinarily, we review revocation sentences under a plainly unreasonable
standard.   United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013).
However, because Rodriguez did not object at the revocation hearing to the
district court’s consideration of improper factors, we review his challenge to
the procedural and substantive unreasonableness of his sentence for plain
error only. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
Rodriguez concedes that his argument that he did not need to object to the
reasonableness of his sentence in order to properly preserve the issue for
appellate review is foreclosed by current circuit precedent.
      Because 18 U.S.C. § 3583(e) omits from its directive the sentencing
factors listed in § 3553(a)(2)(A), which include the need for the sentence “to
reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense,” § 3553(a)(2)(A), a district court may
not rely on these factors in its imposition of a revocation sentence. United
States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011). Here, the district court
expressly disclaimed reliance on the factors listed in § 3553(a)(2)(A). To the
extent that the district court considered the seriousness of the domestic
violence assault giving rise to Rodriguez’s revocation proceedings or the need
to promote respect for the law or provide just punishment, these were not the
dominant factors in the court’s sentencing decision; rather, the dominant
factors in determining the length of the sentence were the district court’s
consideration of other, permissible factors. See § 3553(a)(1), (2)(B), (2)(C);
United States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015).
      A revocation sentence is substantively unreasonable if the district court
did not take into account a factor that should have received significant weight,



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                                 No. 16-11262

gave significant weight to an irrelevant or improper factor, or made a clear
error in judgment when balancing the sentencing factors. Warren, 720 F.3d at
332. Rodriguez has not shown that the court gave significant weight to the
improper factors of the seriousness of the violation, the need to promote respect
for the law, or the need for just punishment. See id. His 30-month sentence,
which does not exceed the statutory maximum, is substantively reasonable.
See id. at 326, 332; Whitelaw, 580 F.3d at 259, 265.
      Accordingly, the judgment of the district court is AFFIRMED.




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