     Case: 14-10476      Document: 00512842875         Page: 1    Date Filed: 11/19/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10476
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        November 19, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ESMERALDA ONTIVEROS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:14-CR-42-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Esmeralda Ontiveros appeals the 18-month sentence imposed following
the revocation of her supervised release for her conviction for aiding and
abetting the possession with intent to distribute marijuana. She argues that
her sentence, which exceeds the range set forth in the nonbinding policy
statements set forth in Chapter Seven of the Sentencing Guidelines but is




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10476

within the statutory maximum, is procedurally unreasonable because the
district court failed to articulate its reasons for imposing sentence.
      Revocation sentences generally are reviewed under 18 U.S.C. § 3742(a)’s
“plainly unreasonable” standard. United States v. Miller, 634 F.3d 841, 843
(5th Cir. 2011).     As Ontiveros concedes, however, because she raised no
objection in the district court, review is for plain error. See United States v.
Whitelaw, 580 F.3d 256, 259–60 (5th Cir. 2009).             Under the plain error
standard, Ontiveros must show a clear or obvious error that affected her
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). This
court has discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. Id.
      The district court held an evidentiary hearing and heard the details of
Ontiveros’s driving while intoxicated arrest, considered the nature of her
supervised release conditions and violations, listened to counsel’s explanation
of why Ontiveros was contesting the revocation motion, heard Ontiveros’s
allocution, and considered her advisory policy statement range. The district
court articulated two reasons for choosing a sentence above the advisory
range—to provide deterrence and to protect the public. The court’s reasons
reflect its concern that an individual who drives while drinking 12 beers, while
on supervised release from a prior conviction under conditions prohibiting such
behavior, needs a sentence sufficient to deter and to protect the public.
Because Ontiveros made no argument concerning the appropriate sentence,
the court had little left to explain.
      The record reflects that the court considered the nature and
circumstances of Ontiveros’s supervised release violations and implicitly
considered her history and characteristics in imposing sentence upon
revocation.    See 18 U.S.C. § 3553(a)(1); Whitelaw, 580 F.3d at 262-65



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                                 No. 14-10476

(recognizing that implicit consideration of the § 3553 factors is sufficient to
satisfy § 3553(c)’s requirement that the district court provide reasons for an
above guidelines sentence).      Although the district court’s statement in
imposing sentence was brief, the district court’s explanation, in the context of
the revocation hearing, was sufficient, and, thus, Ontiveros has not shown
clear or obvious error.
      Even if the court had committed a clear or obvious error in failing to
adequately explain the chosen sentence, Ontiveros has not shown that her
substantial rights were affected or that any error seriously affected the public
reputation of the proceedings. See Whitelaw, 580 F.3d at 262-65. Contrary to
Ontiveros’s suggestion that the court’s error deprives this court of “meaningful
appellate review,” our review of the record of the sentencing proceedings in this
case allows us to conduct a meaningful appellate review. See Whitelaw, 580
F.3d at 264. Nothing in the record suggests that a more thorough explanation
would have resulted in a shorter sentence, and there is no suggestion in the
record that the district court considered any improper factor or would impose
a different sentence on remand. See Whitelaw, 580 F.3d at 264-65. Ontiveros
has not demonstrated plain error with respect to her challenge to the district
court’s explanation of the sentence imposed upon revocation. Id.
      Ontiveros also argues, to preserve the issue for further review, that
Whitelaw was wrongly decided and that we should adopt the reasoning of other
circuits, discussed and rejected in Whitelaw, 580 F.3d at 263, which have held
that the failure to explain a sentence affects substantial rights within the
meaning of the plain error standard of review. One panel of this court may not
overrule the decision of another absent an en banc or superseding Supreme
Court decision. See United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir.
2002).



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                                  No. 14-10476

      Ontiveros also argues that the United States District Court for the
Northern District of Texas lacked jurisdiction to adjudicate violations of her
supervised release committed prior to the Northern District’s acceptance of
jurisdiction over her supervised release imposed in 2013 in the Western
District of Texas. Conceding that her arguments are foreclosed by this court’s
decision in United States v. Fernandez, 379 F.3d 270 (5th Cir. 2004), she
contends that Fernandez was incorrectly decided, and she raises the issue to
preserve it for further review.
      As Ontiveros concedes, whatever their merit, her arguments challenging
the transfer of jurisdiction from the Western District to the Northern District
are foreclosed by Fernandez. See Fernandez, 379 F.3d at 272-77. Again, we
may not overrule the decision of another panel of this court absent an en banc
or superseding Supreme Court decision. See Lipscomb, 299 F.3d at 313 n.34.
      AFFIRMED.




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