     Case: 17-50407   Document: 00514678694        Page: 1   Date Filed: 10/11/2018




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

                                                                     FILED
                                    No. 17-50407              October 11, 2018
                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                            Clerk


             Plaintiff - Appellee

v.

RICHARD FUENTES,

             Defendant - Appellant




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


Before JOLLY, ELROD, and WILLETT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Richard Fuentes appeals the district court’s five-year sentence imposed
after his supervised release was revoked.          Because we conclude that the
sentence was not plain error, we affirm the judgment of the district court.
                                         I.
      In 2003, Richard Fuentes pled guilty to possession of a firearm as a
person who had accrued three prior convictions for violent felonies under the
Armed Career Criminal Act (ACCA). See Johnson v. United States, 135 S. Ct.
2551, 2555 (2015).     The district court sentenced him to 180 months of
imprisonment and five years of supervised release. One of the supervised
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                                      No. 17-50407
release conditions included in the judgment required Fuentes to attend and
participate in sex offender treatment as approved and directed by the
probation officer. 1 This court summarily affirmed the judgment of conviction.
       Fuentes then filed a 28 U.S.C. § 2255 motion in district court seeking
relief because the Sentencing Guidelines had been ruled unconstitutional and
his sentence exceeded the average sentence imposed for his statute of
conviction.    In response to the district court’s show cause order, Fuentes
repeated his claim regarding the unconstitutionality of the Sentencing
Guidelines and added a claim that he had never been convicted of a violent
felony. The district court dismissed his § 2255 motion because none of his
claims warranted relief.
       In February 2006, Fuentes filed a second § 2255 motion in district court
in which he claimed that he was denied the effective assistance of trial counsel.
The district court dismissed his second § 2255 motion without prejudice as an
unauthorized successive § 2255 motion and as untimely.
       Fuentes began his term of supervised release on March 8, 2016. In May
2016, the district court issued a summons for Fuentes at the probation officer’s
request and advised Fuentes to follow the applicable instructions and
directives from the probation officer regarding Fuentes’s sex offender
evaluation and treatment. In September 2016, the probation officer filed a
petition for a warrant recommending revocation of Fuentes’s term of
supervision due to his continued refusal to submit to sex offender evaluation
and treatment.        The petition contained two specific allegations against
Fuentes: (1) in March 2016, he reported to a sex offender evaluation, but the
evaluation could not be completed because he refused to sign the release of



       One of the violent felony convictions listed in Fuentes’s indictment was a conviction
       1

under Texas state law for indecency with a child by contact.
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                                  No. 17-50407
information documents; and (2) in August 2016, he reported twice to his sex
offender evaluation, but the evaluation could not be completed on both
occasions because he refused to participate fully in the process.
      At his revocation hearing, Fuentes refused to admit to the allegations in
the petition and stated that he complied with all applicable requirements. The
probation officer testified that Fuentes (1) refused to sign the consent form for
his sex offender evaluation until the day the district court summoned him and
advised him to comply; (2) refused to answer various questions during the sex
offender evaluation, thereby preventing completion of that evaluation; and
(3) persisted in that refusal despite the probation officer’s explanation that his
refusal to comply constituted a violation of the terms of his supervised release.
The counselor who attempted to perform Fuentes’s sex offender evaluation
testified that (1) Fuentes refused to sign the consent form at their first meeting;
(2) after he eventually signed the consent form, he refused to answer certain
evaluation questions; (3) his refusal to answer those questions prevented
completion of the evaluation; and (4) he persisted in that refusal despite the
counselor’s explanation that the evaluation could not be completed without
those answers.     The district court determined that Fuentes violated his
supervised release conditions and therefore revoked that term of supervised
release.
      The Government argued that Fuentes should be sentenced to the
statutory maximum of five years of imprisonment, with no additional term of
supervised release, because of Fuentes’s steadfast refusal to comply with the
terms of his release. The district court agreed with defense counsel that the
revocation judgment could not include the sex offender condition for supervised
release under current law because it was not based on a federal conviction.
The district court sentenced Fuentes to five years of imprisonment with no
term of supervised release. Fuentes filed a timely notice of appeal.
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                                            II.
       On appeal, Fuentes argues that his five-year revocation sentence is
substantively unreasonable because he (1) no longer qualifies for an enhanced
penalty under the ACCA after Johnson and (2) has already served more time
in prison than the non-ACCA aggregate maximum for his original offense and
revocation. He concedes that he cannot challenge his underlying conviction
and sentence and that he did not object to the revocation sentence.
       When a defendant properly preserves an objection for appeal, revocation
sentences are reviewed under a “plainly unreasonable” standard.                    See 18
U.S.C. § 3742(a); United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). To
determine whether a sentence is plainly unreasonable, this court first
evaluates whether the district court committed a “significant procedural error,
such as failing to consider the [18 U.S.C.[ § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing adequately to explain the chosen
sentence, including failing to explain a deviation from the Guidelines range.”
United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013) (internal quotation
marks and citation omitted). If there is no procedural error, the court considers
the substantive reasonableness of the sentence under an abuse of discretion
standard, “examining the totality of the circumstances.” Id. at 326, 332. 2
Fuentes, however, did not object to the sentence below, so we review for plain
error. See United States v. Whitelaw, 580 F.3d 256, 259–60 (5th Cir. 2009). To
show plain error, Fuentes must demonstrate an error that is clear or obvious
— “rather than subject to reasonable dispute” — and affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes



       2Some of our precedent goes further, suggesting that, even when the defendant objects
at the district court level, we must also ask whether the “error was obvious under existing
law” as part of the “plainly unreasonable” review. See Miller, 634 F.3d at 843. Because we
are conducting plain error review, however, we will not address this prong.
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that showing, this court has the discretion to correct the error only if it
“seriously affect[s] the fairness, integrity[,] or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted). The burden
of establishing entitlement to relief for plain error is on the party claiming it.
See United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). Meeting all
four prongs of the plain error standard “is difficult, as it should be.” Puckett,
556 U.S. at 135 (internal quotation marks and citation omitted); United States
v. Evans, 587 F.3d 667, 671 (5th Cir. 2009) (explaining this court “ordinarily
do[es] not find plain error when [it has] not previously addressed an issue”
(internal quotation marks omitted)).
      The Supreme Court has recently found that, despite both being labeled
“standards of review,” the “plain error” inquiry is separate from the
“substantive unreasonableness” inquiry. Rosales-Mireles v. United States, 138
S. Ct. 1897, 1910 (2018) (“A substantive reasonableness determination . . . is
an entirely separate inquiry from whether an error warrants correction under
plain-error review.”). Thus, in examining Fuentes’s sentence on appeal, we
must first ask whether the sentence is “substantively unreasonable,” - that is,
whether the district court engaged in an abuse of discretion under the “totality
of the circumstances.”    Warren, 720 F.3d at 332.         Then, because we are
reviewing for plain error, we must ask whether it was clear or obvious that the
sentence imposed by the district court was an abuse of discretion. See Puckett,
556 U.S. at 135.
      In this appeal, Fuentes notes that, at his original sentencing in 2003, he
challenged the use of his Texas indecency-with-a-child conviction as a violent
felony under the ACCA, but the Government responded that the indecency
conviction qualified under the Act’s residual clause. The sentencing court
overruled his challenge and sentenced him to the mandatory minimum of 15
years of imprisonment required by the ACCA. In 2015, the Supreme Court
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                                 No. 17-50407
held in Johnson that increasing a defendant’s sentence under the ACCA
residual clause is unconstitutional. Johnson, 135 S. Ct. at 2557. The Supreme
Court later held that “Johnson announced a substantive rule that has
retroactive effect in cases on collateral review.” Welch v. United States, 136 S.
Ct. 1257, 1268 (2016).
      Fuentes contends that he was therefore wrongfully subject to enhanced
penalties under the ACCA. He argues that he should have been subject to a
ten-year statutory maximum term of imprisonment and, because that lowered
his offense to a Class C felony under 18 U.S.C. § 3559(a)(3), the maximum
revocation imprisonment term would have been two years under 18 U.S.C.
§ 3583(e)(3). Since his actual sentence of five years would not have been
permissible without the alleged constitutional defect, and because he has
already served nearly 13 years in prison (one year longer than the 12-year
aggregate term that he should have been sentenced to originally), he contends
that his revocation sentence is substantively unreasonable.
      In support of that view, he relies on this court’s holding in United States
v. Willis, 563 F.3d 168, 169–70 (5th Cir. 2009). Willis was convicted of two
counts of being a felon in possession of a firearm and was sentenced to two
terms of imprisonment and two terms of supervised release, all to run
concurrently. Id. at 169. In his unsuccessful direct appeal and § 2255 motions,
Willis failed to argue that his conviction on two counts, both for simultaneous
possession of two firearms, was multiplicitous. Id. After he completed his
imprisonment terms, he violated the conditions of his supervised release, so
both terms of supervised release were revoked. Id. The district court imposed
two revocation sentences of twenty-four months of imprisonment to run
consecutively. Id. On appeal, this court held that, “although there is no
question the underlying convictions were multiplicitous, Willis may not
challenge those underlying convictions in this appeal.” Id. at 170. Willis’s
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                                 No. 17-50407
challenge to the reasonableness of the second revocation sentence, however,
was permissible. Id. This court noted that the second revocation sentence was
legal in the sense that it stemmed from his original sentence, which remained
undisturbed. Id. Despite its legality, we held that the second revocation
sentence was plainly unreasonable because it “would require that Willis serve
two revocation sentences, consecutively, as a penalty for what all parties now
agree was only one offense.” Id. This court stated that this holding was narrow
and “limit[ed] the precedential value of [its] holding to cases presenting
indistinguishable facts in all material respects.” Id.
      Willis does not directly control our decision here. Even if the case were
otherwise indistinguishable, the Willis court was reviewing a properly
preserved challenge, whereas we are reviewing only for plain error. This does
not mean that Willis is irrelevant, but it does mean that Willis must have been
sufficient to make it “clear or obvious” that Fuentes’s sentence was
unreasonable.
      Taking this into account, we conclude that the sentencing court did not
commit plain error in its decision. The defendant asks us to read Willis to have
established a broad proposition that any sentence that was lengthened by an
apparent   constitutional   defect   in   prior   proceedings   is   substantively
unreasonable.    We do not believe that the case stood for such a broad
proposition, let alone “obviously.” The Willis court made clear that its holding
was limited to the material facts of that case.
      Furthermore, the facts here are materially different from those
presented in Willis. First, the nature of the alleged constitutional infirmity is
quite different. In Willis, the defendant argued that his original convictions
were multiplicitous on their face, unlike Fuentes, who alleges an error in his
sentence which only became apparent years later due to an intervening
Supreme Court decision.
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                                 No. 17-50407
      Second, unlike Willis, the parties do not agree that Fuentes’s original
judgment of conviction was erroneous. Fuentes does not cite to a case holding
that a Texas conviction for indecency with a child by contact no longer qualifies
as a violent felony under the ACCA, but he instead argues that such a
determination is supported by viewing Johnson’s effect on various pre-Johnson
cases regarding such offenses. This fact alone would likely be sufficient to
affirm Fuentes’s sentence. 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 and citation omitted)).
      Third, even if Fuentes is correct that he would no longer qualify for an
enhanced     penalty   under   the   ACCA,    the   relationship    between    the
constitutional violation and Fuentes’s sentence is quite different from Willis.
In Willis, the uncorrected defect in the original conviction was both carried
forward and exacerbated by the imposition of two consecutive revocation
sentences.   563 F.3d at 170 (“There is no question but that the second
revocation sentence is multiplicitous in its own right.”). In the instant case,
the ACCA penalty enhancement was carried forward, as would be expected,
because the higher statutory maximum resulted in a higher maximum
revocation imprisonment term.        18 U.S.C. §§ 3559(a)(3), 3583(e)(3).     The
imposition of a statutory maximum revocation sentence in this case did not
exacerbate that original flaw in a sufficiently similar manner to Willis such
that Willis trumps the default view that a statutory maximum revocation
sentence is neither plainly unreasonable nor plain error.
      Irrespective of whether these distinctions would be sufficient to persuade
us to vacate the sentence under Willis had the defendant properly raised the
issue below, they are sufficient to persuade us that the district court did not
commit a plain error, particularly in the light of Willis’s careful limitation of
its own precedential value. Because it is not plain that under existing law the
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                              No. 17-50407
statutory maximum revocation sentence is substantively unreasonable, the
judgment of the district court is AFFIRMED.




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