                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                       April 18, 2007

                       _______________________                Charles R. Fulbruge III
                                                                      Clerk
                             No. 06-40271
                       _______________________


                      UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                versus

                      JUAN HERNANDEZ-MARTINEZ,

                                                   Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas



Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.

EDITH H. JONES, Chief Judge:

          Appellant Juan Hernandez-Martinez (“Martinez”) appeals

his revocation sentence, arguing inter alia that the district court

improperly based his sentence on the Guideline for illegal reentry

to the United States, a crime he committed but was not charged

with.   Under   the   applicable   plain   error   standard   of    review,

Martinez cannot establish that the district court used an improper

sentencing consideration, and his sentence is AFFIRMED.

                           I.   BACKGROUND

          Hernandez’s first appearance before the district court

occurred in 1999, when he pled guilty to one count of possession

with intent to distribute cocaine, an offense that carried a
statutory penalty of one hundred twenty months.                        Hernandez’s

criminal history made him safety-valve eligible, reducing the

applicable Guidelines range to seventy to eighty-seven months.

Based on his substantial assistance to the Government, however, the

court    granted      a   significant       downward   departure    and    sentenced

Hernandez to only forty-eight months imprisonment, to be followed

by five years’ supervised release.               Among the conditions of super-

vised release were that: (1) Hernandez was not to commit another

federal, state, or local crime; (2) if deported, Hernandez was not

to reenter the United States illegally; and (3) if Hernandez

returned to the United States, he was to report to the nearest

United States Probation Office.

               After completing his sentence, Hernandez was released

from prison in May 2002, and deported to his home country of

Mexico. His homecoming was short-lived. Hernandez returned to the

United States illegally approximately a year and a half after his

deportation and began working in a mattress factory in Chicago,

Illinois.        In   2005,      he   was   arrested   for   shoplifting      from   a

JC Penney store.          Hernandez was released on bond, but after he was

detained    following       a    traffic     stop,   the   Probation      Office   was

notified of the arrest.           Hernandez was not charged in Illinois with

either theft or illegal reentry, but the United States Government

sought    to    revoke     his    supervised     release     for   three    separate

violations:       (1) committing theft; (2) unlawfully reentering the

United States; and (3) failing to report to the Probation Office

                                             2
upon reentry.    Hernandez was sent from Illinois to Texas for

revocation proceedings.

          At the revocation hearing, Hernandez appeared before the

same judge who had granted him a significant downward departure in

his cocaine possession sentence, and he pleaded true to the three

violations.   The court expressed displeasure that Hernandez had

blatantly disregarded the provisions surrounding his supervised

release and that the prior sentence had not deterred his criminal

activity. The court also expressed frustration with the failure of

the U.S. Attorney’s office in Chicago to prosecute Hernandez, and

others similarly situated, for illegal reentry into the United

States, instead sending them to the Southern District of Texas for

revocation proceedings.   After discussing with counsel Hernandez’s

violations, the prior downward departure, and the lack of an

illegal reentry prosecution, the court inquired what the Guidelines

sentence for illegal reentry would have been.         The Probation

Officer advised the court that Hernandez would have faced forty-six

to fifty-seven months imprisonment had he been prosecuted in

Illinois for illegal reentry.        Concluding that the revocation

Guideline of four to ten months did not adequately address this

type of violation and that the prior sentence had served as an

insufficient deterrent, the court sentenced Hernandez to forty-six

months — significantly above the Guidelines range but well below

the statutory maximum of five years for revocation.



                                 3
           Hernandez appeals, asserting that he was impermissibly

sentenced for his uncharged illegal reentry rather than for his

underlying drug offense, and that his sentence is thus unreason-

able, plainly unreasonable, and an abuse of discretion.

                              II.    DISCUSSION

                       A.    Preservation of Error

           The Government argues that Hernandez raises his reason-

ableness objection for the first time on appeal, and we therefore

should review only for plain error.            See FED. R. CRIM. P. 52(b);

United States v. Olano, 507 U.S. 725, 732-34, 113 S. Ct. 1770,

1776-78 (1993).    Hernandez, however, asserts that he preserved his

objection below by requesting a sentence at the low end of the four

to ten month Guidelines range.             He contends that this request

preserves all claims of sentencing error generally, and that he can

now present any argument in support thereof.

           Hernandez is incorrect that simply asking the court to

sentence   him   within     the   Guidelines   preserves     an   argument     of

specific legal error.         Nowhere before the district court did

Hernandez object that the sentence was unreasonable, nor did he

alert the court to the legal argument he now presents that the

court   considered     an    inappropriate      factor   and      impinged     on

prosecutorial    discretion.1       Were   a   generalized     request   for    a


      1
            That Hernandez presents a specific legal error distinguishes this
case from those that have held that the defendant need not specifically object
that a sentence is “unreasonable” to preserve a reasonableness objection on
appeal. Compare United States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir.

                                       4
sentence within the Guidelines sufficient, a district court would

not be given an opportunity to clarify its reasoning or correct any

potential errors in its understanding of the law at sentencing, and

its efforts to reach a correct judgment could be nullified on

appeal.   See United States v. Reyes, 102 F.3d 1361, 1365 (5th Cir.

1996) (“[A] contrary decision . . . would encourage the kind of

sandbagging that the plain error rule is, in part, designed to

prevent”).

            Here, the district court expressed frustration both at

the failure of the Government to charge illegal reentry and the

fact that Hernandez had not taken the opportunity arising from a

lenient sentence to stay within the law.          It did not specify which

of these was its motivating factor, nor was it asked to do so by

Hernandez.     Similarly, as the court was not on notice that its

statements were being construed in the manner in which Hernandez

now characterizes them, it is unclear whether, by questioning the

Government as to its failure to charge reentry, the district court

was using that as a basis on which to sentence Hernandez, or simply

expressing displeasure at the Government’s charging practices.

            Had the defense objected at sentencing, the court easily

could have clarified or, if necessary, corrected itself.               Cf. id.

(“[I]f Reyes had objected to the district court’s instructions, the

court would certainly have corrected its error”).             Because it was



2006) with United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir. 2005).

                                       5
not on notice of the arguments Hernandez now presents, however, it

was not given that opportunity.        We therefore review the case only

for plain error.     See United States v. Dominguez Benitez, 542 U.S.

74, 82, 124 S. Ct. 2333, 2340 (2004) (policy behind plain error

standard is “to encourage timely objections and reduce wasteful

reversals    by   demanding    strenuous   exertion    to     get   relief   for

unpreserved error”). To prevail, Hernandez must establish: (1) an

error; (2) that is clear and obvious; and (3) that affected his

substantial rights.        Olano, 507 U.S. at 732-34, 113 S. Ct. at

1776-78.    If these conditions are met, this court can exercise its

discretion   to   notice   the     forfeited   error   only    if   “the   error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.”        Id. at 732, 113 S. Ct. at 1776 (internal

quotation marks omitted).

                              B.   Reasonableness

            Before United States v. Booker, 543 U.S. 220, 125 S. Ct.

738 (2005), revocation sentences were reviewed under the “plainly

unreasonable” standard set forth in 18 U.S.C. § 3742(e)(4).                  See

United States v. Moody, 277 F.3d 719, 720 (5th Cir. 2001).                    In

Booker, however, the Supreme Court excised 18 U.S.C. § 3742(e) and

instructed appellate courts to review criminal sentences, no longer

controlled by the sentencing Guidelines, for reasonableness.                 See

Booker, 543 U.S at 260-61, 125 S. Ct. at 764-66.                    The parties




                                       6
dispute whether this reasonableness standard of review applies to

revocation sentences.

            According       to   Hernandez,        the   reasonableness         standard

should apply to any non-Guidelines sentences, whether original or

revocation.         Thus,   we    would     consider      whether      the    sentence:

(1) fails to 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.              See United States v. Duhon, 440

F.3d 711, 715 (5th Cir. 2006).             Four circuits agree with Hernandez

and have applied Booker’s reasonableness standard to revocation

sentences.2     Courts have also observed that because this test is

substantially equivalent to the plainly unreasonable standard,

little has changed post-Booker.                See Sweeting, 437 F.3d at 1106;

Tedford, 405 F.3d at 1161; Cotton, 399 F.3d at 916.

            In contrast, the Government advocates adherence to the

pre-Booker plainly unreasonable standard.                   Unlike the Guidelines

applicable to original sentences, the Guidelines for revocation

sentences     have   always      been   advisory.          See    United      States   v.

Escamilla,     70    F.3d   835,     835    (5th    Cir.     1995)     (per     curiam).

Logically,    Booker’s      ripple      effects     should       not   extend    to    the

revocation context.         The Fourth Circuit persuasively reasons that


      2
            See United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2006)(per curiam); United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir.
2005); United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005); United States
v. Fleming, 397 F.3d 95, 99 (2d Cir. 2005).

                                           7
§ 3742(a)(4), which authorizes the “plainly unreasonable” standard

for revocation sentences, was not invalidated by Booker.                United

States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006).                While that

provision does not create a standard of review, the court noted, it

would be “incongruous that a defendant limited to asserting that

his revocation sentence is ‘plainly unreasonable,’ would be allowed

to argue that his sentence should be reversed because it is

‘unreasonable.’”     Id.   Additionally, the Guidelines commentary and

statutory provisions “suggest that revocation sentences should not

be treated exactly the same as original sentences,” because the

context of sentencing differs in each instance.             Id.   The goal of

a revocation sentence is to punish the defendant for the violation

of supervised release, not the underlying offense.                Id. (citing

United States Sentencing Commission, Guidelines Manual, ch. 7,

pt. A, introductory cmt. 3(b)).

           There are other indications that the same standard of

review should not apply to revocation and original sentences.              For

example,   the    Sentencing     Commission   “chose   to   promulgate    less

precise, nonbinding policy statements” for revocation sentences.

Id. at 438.      Additionally, in § 3583(e), which governs revocation

sentences, Congress provided that only some of the factors set

forth in § 3553(a), which are to be considered when imposing a

sentence, also apply in revocation proceedings.               Id.     Finally,

Congress   used     both   the     terms   “unreasonable”     and     “plainly



                                      8
unreasonable” in § 3742(e), suggesting it intended the two terms to

be distinct, and “plainly” was not mere surplusage.             Id.

            Ultimately, any difference between the two proffered

standards of review for a revocation sentence would not affect

Hernandez’s fate.        The plain error standard of review clearly

forecloses appellate relief. Although the district court expressed

displeasure at the Government’s failure to charge Hernandez with

illegal reentry, it is not evident that it based his sentence on

that ground; it is equally or more plausible that the court based

his sentence on the fact that it gave Hernandez a significant

downward departure in his original sentence.            Thus, if there was

any error, it is not plain.            Because Hernandez did not object at

sentencing and give the court an opportunity to clarify itself, we

are unable to conclude that the court based his sentence on an

impermissible factor.      Moreover, that the forty-six month sentence

is   significantly      below    the    statutory   five-year   maximum    on

revocation strongly counsels against its being held reversible on

plain error review.

                                III.   CONCLUSION

            For   the   foregoing      reasons,   Hernandez’s   sentence   is

AFFIRMED.




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