     Case: 16-11370      Document: 00514065389         Page: 1    Date Filed: 07/10/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                           United States Court of Appeals

                                    No. 16-11370
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                            July 10, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

MARIA DELSOCORRO RENTARIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-209-1


Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
       Maria Delsocorro Rentaria appeals the district court’s judgment
revoking her supervised release and imposing a sentence of four months to be
followed by a 24-month term of supervised release. Although Rentaria has
been released from prison, her appeal is not moot because it is possible that
the district court will alter her remaining term of supervised release if it 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11370

determined that she served excess prison time as a result of the district court’s
error. See Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006).
      Rentaria contends that the district court erred in failing to apply the
exception to mandatory revocation under 18 U.S.C. § 3583(d) based on her
failure to pass drug tests on two occasions. She asserts that the district court
committed a significant procedural error by relying on a factor that Congress
intended to exclude from consideration under § 3583(d).
      This court reviews the district court’s statutory interpretation de novo.
United States v. Courtney, 979 F.2d 45, 48 (5th Cir. 1992).           Pursuant to
§ 3583(g), revocation of supervised release is mandatory if, inter alia, the
defendant possesses a controlled substance or tests positive for drug use more
than three times in one year. However, § 3583(d) provides an exception to
mandatory revocation under § 3583(g), requiring the district court to consider
“the availability of appropriate substance abuse treatment programs, or an
individual’s current or past participation in such programs, . . . when
considering any action against a defendant who fails a drug test.” § 3583(d).
      Rentaria was subject to mandatory revocation because she admitted
using marijuana on two occasions, thus implicitly admitting the possession
thereof. United States v. Smith, 978 F.2d 181, 182 (5th Cir. 1992). The district
court’s comments reflect that it was aware of the exception to imposing a term
of imprisonment upon mandatory revocation but its statements also showed
that, based on Rentaria’s conduct, the application of the exception was not
warranted. Contrary to Rentaria’s arguments, the district court considered
factors other than Rentaria’s mere failure to pass two drug tests.
      Moreover, the district court stated that, in light of the record before it, it
would have revoked Rentaria’s supervised release whether or not revocation
was mandatory. Thus, any error regarding the nature of the revocation was



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                              No. 16-11370

harmless. See United States v. Martinez-Romero, 817 F.3d 917, 924-25 (5th
Cir. 2016).
      The judgment is AFFIRMED.




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