     Case: 10-50952     Document: 00511589641         Page: 1     Date Filed: 08/31/2011




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

                                                                            FILED
                                                                          August 31, 2011
                                     No. 10-50952
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID SERRANO-VILLALOBOS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:05-CR-248-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        David Serrano-Villalobos appeals the sentence imposed following the
revocation of his supervised release. The district court sentenced Serrano-
Villalobos to 9 months of imprisonment and 24 months of supervised release. He
also was ordered to submit to electronic monitoring and home confinement
during evening hours for the first year of his supervised release. Serrano-
Villalobos argues that the imposition of an additional term of supervised release



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50952

and the requirement for home confinement resulted in a sentence that was
greater than necessary and unreasonable.
      Because Serrano-Villalobos did not object to the reasonableness of his
sentence in the district court, we review for plain error only. See United States
v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To show plain error, the
appellant must show a forfeited error that is clear or obvious and that affects her
substantial rights. Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1429
(2009). If the appellant makes such a showing, we have the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      After revoking supervised release, a district court may impose any
sentence that falls within the appropriate statutory maximum term of
imprisonment allowed for the revocation sentence. 18 U.S.C. § 3583(e)(3). If a
term of supervised release is revoked and the defendant is ordered to serve a
term of imprisonment, the district court also may impose an additional term of
supervised release. § 3583(h). In the instant case, both the 9 month term of
imprisonment and the additional 24 month term of supervised release were
within the statutory maximums.
      Serrano-Villalobos also has not shown that the district court committed
plain error by imposing an additional term of supervised release and requiring
one year of electronic monitoring and home confinement during evening hours
as special conditions. Pursuant to 18 U.S.C. § 3553(a)(1), the district court is to
consider “the history and characteristics of the defendant” in determining the
sentence to be imposed. One of the violations that ultimately resulted in
revocation of supervised release was based on an admitted allegation that police
found Serrano-Villalobos drunk outside of a local bar at 5 a.m. Additionally, the
district court found that Serrano-Villalobos had violated the terms of his
supervised release by failing to cooperate with required drug testing. In light of
what these violations reveal about Serrano-Villalobos’s “history and

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                                  No. 10-50952

characteristics,” the imposition of conditions requiring electronic monitoring and
home confinement was not plain error.
      To the extent Serrano-Villalobos is arguing that the totality of the
sentence imposed was unreasonable, he essentially is asking this court to
substitute his view of what an appropriate sentence would be for the district
court’s view, which we decline to do. Cf. Gall v. United States, 552 U.S. 38, 51
(2007) (“The fact that the appellate court might reasonably have concluded that
a different sentence was appropriate is insufficient to justify reversal of the
district court.”).
      AFFIRMED.




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