     Case: 17-11426       Document: 00514630414         Page: 1     Date Filed: 09/06/2018




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

                                     No. 17-11426                               FILED
                                   Summary Calendar                     September 6, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MICHAEL JAMES DUENAS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:10-CR-19-5


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Michael James Duenas appeals the 18-month sentence imposed after his
second revocation of supervised release. The sentence was four months above
the advisory Guidelines sentencing range, but below the statutory maximum
sentence. Duenas claims the sentence was plainly erroneous.
       In 2010, Duenas pleaded guilty, inter alia, to being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2. He was


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-11426

sentenced, inter alia, to 71 months’ imprisonment and three years’ supervised
release.
      His first term of supervised release began in May 2015. That September,
the Government moved to revoke supervised release for violations of parole,
including drug-use, drug-possession, and failure to report to the probation
officer. Duenas admitted the violations. The court revoked his supervised
release and sentenced him, inter alia, to 12 months’ imprisonment, followed by
another year of supervised release.
      Duenas’ second term of supervised release began in August 2016, and
the terms required he: permit a probation officer to visit him; not illegally
possess or use any controlled substance; and not commit other crimes. In
November 2017, the Government moved to revoke Duenas’ supervised release,
again on grounds he failed to keep the probation officer informed of his
whereabouts and used and possessed methamphetamine, having been arrested
for possessing it in September 2017.
      At the revocation hearing, Duenas admitted the allegations were true
and declined to make a statement on his own behalf. The court found Duenas
had committed a Grade B violation and had a criminal history category of III,
resulting in an advisory Guidelines sentencing range of eight to 14 months’
imprisonment under Sentencing Guideline § 7B1.4. The statutory maximum
was 24 months’ imprisonment under 18 U.S.C. §§ 3559(a)(3) and 3583(e)(3).
Duenas was sentenced, inter alia, to 18 months’ imprisonment, with no
additional supervised release. The court stated the above-sentencing-range
sentence “addresses the issues of adequate deterrence and protection of the
public”. As Duenas concedes, he did not object to the sentence during the
hearing.




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                                   No. 17-11426

      Because Duenas did not object to his sentence in district court, review is
only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, Duenas must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id. Duenas cannot meet
this standard.
      “A district court may impose any sentence upon revocation of supervised
release that falls within the statutory maximum term allowed for the
revocation sentence, but must consider the factors enumerated in 18 U.S.C.
§ 3553(a) and the policy statements before doing so.” United States v. Davis,
602 F.3d 643, 646 (5th Cir. 2010); 18 U.S.C. § 3583(e); see also United States v.
Miller, 634 F.3d 841, 844 (5th Cir.), cert. denied, 565 U.S. 976 (2011).
      In claiming his sentence was plainly erroneous, Duenas contends the
court did not give adequate consideration to his history and characteristics.
The court heard Duenas’ pleas for leniency, including his employment history,
character, and financial support of grandchildren. It also considered this was
the second time Duenas had faced revocation of supervised release. Nothing
in the record demonstrates the court failed, or refused, to consider Duenas’
history or characteristics. His disagreement with the court’s weighing of the
sentencing factors does not show the requisite clear or obvious error in
considering or weighing the sentencing factors. See United States v. Warren,
720 F.3d 321, 332 (5th Cir. 2013); United States v. Whitelaw, 580 F.3d 256,
262–64 (5th Cir. 2009). Moreover, even when reviewing a sentence for whether
it is “plainly unreasonable” under the ordinary standard of review, our court
defers to the district court’s decision that the 18 U.S.C. § 3553(a) factors justify



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                                No. 17-11426

a sentence above the advisory Guidelines range. See Gall v. United States, 552
U.S. 38, 51 (2007).
      AFFIRMED.




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