     Case: 12-20616       Document: 00512337628         Page: 1     Date Filed: 08/12/2013




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

                                                                            FILED
                                                                          August 12, 2013

                                       No. 12-20616                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOHNNY SANCHEZ CRUZ, also known as Juan Sanchez,
also known as Johnny Sanchez, also known as Juan Ray Cruz,
also known as Johnny Ray Sanchez, also known as Johnny Sanchez-Cruz,
also known as Juan Edmondo Cruz,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:10-CR-411


Before DAVIS, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Johnny Sanchez Cruz appeals his sentence based on revocation of the
release terms from a prior conviction. Finding no error, we AFFIRM.
                                    BACKGROUND
       Upon pleading guilty to illegal reentry in 2010, Appellant was sentenced
to two years imprisonment and three years of supervised release. After being

       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 12-20616

deported, Cruz again reentered the country illegally and subsequently
committed a Class A misdemeanor in Harris County.              This misdemeanor
violated his release terms and the federal government asked the district court
for revocation of the supervised release.
      During the sentencing hearing, the fact arose that Cruz was not being
prosecuted for illegal reentry. At one point the court said, “[I]f the government’s
not going to prosecute him for illegal reentry, I don’t think that there’s any other
choice but that I give him the high end of the guidelines range.” Later the judge
stated, “[T]he government’s not going to do anything about the fact that he
illegally reentered the United States. So . . . the only thing I can do is just give
him some time in jail, he’ll think, well, maybe I won’t come back again, because
. . . maybe they’d find me again and then I would be prosecuted.” The court then
sentenced Cruz to the Guideline maximum of 14 months, stating that such a
sentence would address the “objectives of punishment, incapacitation, and
deterrence in accordance with United States Sentencing Guidelines Section
3553(c).” Cruz timely appealed.
                                 DISCUSSION
      Sentences imposed upon revocation of supervised release are reviewed
under the “plainly unreasonable” standard. United States v. Miller, 634 F.3d
841, 843 (5th Cir. 2011). This court will first assess whether the district court
committed procedural error and then consider “the substantive reasonableness
of the sentence under an abuse-of-discretion standard.           If a sentence is
unreasonable, then [the court] consider[s] whether the error was obvious under
existing law.” Id. (internal quotation marks and citation omitted).
      In revoking a supervised release, the district court must focus on factors
such as the history and characteristics of the defendant, § 3553(a)(1), and
deterrence, § 3553(a)(2)(B), rather than punishment. Miller, 634 F.3d at 844.
Appellant charges that the district court imposed a plainly unreasonable

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                                       No. 12-20616

sentence by adopting a top-of-the-range sentence in response to the government’s
failure to prosecute for illegal reentry. He also claims that the court violated
Miller by relying on punishment as a factor in setting the revocation sentence.
See 18 U.S.C. § 3583(e); Miller, 634 F.3d at 844.1
       Appellant’s claims fail for two reasons. First, there is no indication the
sentence was a retaliation for the lack of illegal reentry prosecution. Second,
and relatedly, though the court perfunctorily listed punishment as a sentencing
factor near the end of the hearing, there is no evidence to show it was actually
a motivating factor in the outcome. In this case, Cruz’s long history of recidivism
and his apparent propensity to illegally enter the United States were both
appropriate considerations and adequate justifications for the sentence. The
court’s focus on deterrence defeats Appellant’s arguments and shows that the
within-Guidelines sentence was not plainly unreasonable.
       It is of no consequence that the court referenced the government’s non-
prosecution of the illegal reentry. Even though the comments coincide with a
decision to employ a top-of-the-Guidelines sentence, only one rationale is offered:
“ So . . . the only thing I can do is just give him some time in jail, he’ll think, well,
maybe I won’t come back again, because . . . maybe they’d find me again and
then I would be prosecuted.” Upon learning there would be no additional jail
time from an illegal reentry prosecution that might help dissuade Cruz from
repeating his actions, the court reasonably chose to provide Cruz with the
longest available opportunity for reflection on this point.                  Prevention of
subsequent lawbreaking is a legitimate objective and it is spurious to say that

       1
         The actual objection at the hearing was that (1) the sentence was greater than
necessary to achieve the sentencing goals; (2) it focused too much on deterrence; and (3) it
relied on the government’s failure to prosecute Cruz for illegal reentry. No objection was made
at that time to punishment being considered as a factor; this triggers plain error review.
Because it is more plausible that the court’s decision was based on deterrence than
punishment, the error is certainly not plain. See United States v. Hernandez-Martinez,
485 F.3d 270, 274 (5th Cir. 2007).

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the 14-month sentence focused too much on deterrence.        Far from being
unreasonable, the court’s words reveal a clear desire to deter future action
rather than a punitive focus on the defendant deserving the sentence.
                              CONCLUSION
     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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