     Case: 08-11175    Document: 00511022747        Page: 1     Date Filed: 02/08/2010




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

                                                  FILED
                                                                       February 8, 2010

                                      No. 08-11175                   Charles R. Fulbruge III
                                                                             Clerk

UNITED STATES OF AMERICA

                                                 Plaintiff-Appellee
v.

JOHN PAUL JIMENEZ

                                                 Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                           USDC No. 5:06-CR-027-ALL


Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant John Paul Jimenez appeals the 36-month sentence
he received following revocation of his supervised release. He contends that the
district court miscalculated his sentence because it erroneously determined his
guideline range to be 12 to 18 months rather than 6 to 12 months.
                             I. Facts and Proceedings
        Jimenez pleaded guilty to possession of 178 kilograms of marijuana with
intent to distribute in 2002 and was sentenced to 50 months in prison and four

        *
         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not be published and is not precedent except under the limited circumstances set forth in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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years of supervised release. While under supervised release, Jimenez admitted
to his probation officer that he had used cocaine in March 2007, and the
government moved to revoke his release and secured a warrant for his arrest.1
Jimenez absconded from supervision and was arrested 18 months later, in
October 2008.
       In the Violation Report, the probation officer stated that Jimenez had
committed a Grade C violation and calculated his criminal history category
(“CHC”) as IV. The Report incorrectly noted, however, that the imprisonment
range for Grade C, CHC IV under United States Sentencing Guidelines
(“USSG”) § 7B1.4(a) is 12 to 18 months rather than the correct range of 6 to 12
months. After determining that Jimenez had committed a Grade C violation and
that he had a CHC of IV, the district court sentenced Jimenez to 36 months in
prison, justifying the sentence by noting that Jimenez had absconded from
supervision for 18 months and that the sentence would afford Jimenez an
opportunity to participate in a drug treatment program.                   Jimenez timely
appealed.
                                       II. Analysis
       Jimenez contends that the 36 month sentence is plainly unreasonable
because the district court was required to consider the correct guideline range.
He argues that, even though the court departed upward, there is a reasonable
probability that he would have received a lesser sentence if the court had
considered the correct sentencing range. The government responds that Jimenez
could have been found to have committed a Grade B violation (the guideline
range for which is 12 to 18 months), but that, in any event, Jimenez cannot



       1
         Jimenez had previously violated the terms of his release in 2006 by testing positive
to cocaine; rather than revoking his release, the district court required him to reside in a
community correction facility for 180 days and referred him to a drug treatment program.
In December 2006, he was released from the program.
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prove that his sentence is unreasonable.
      As Jimenez did not bring to the district court’s attention the asserted error
in the calculation of his term of imprisonment, we review his claim for plain
error.2 To establish plain error, the defendant must show (1) an error (2) that
is plain, (3) that affects his substantial rights, and that (4) seriously affects the
fairness, integrity, or public reputation of judicial proceedings.3 To show that an
error affected his substantial rights, the defendant must show “a reasonable
probability” that but for the error he would have received a different sentence.4
A district court may impose any sentence on revocation of supervision that falls
within the statutory maximum term allowed for the revocation sentence,5 but
must do so in light of the factors enumerated in 18 U.S.C. § 3553(a) and the
policy statements of Chapter 7 of the USSG.6
      Even assuming that the district court erroneously determined the
guideline range for Jimenez’s term of imprisonment to be 12 to 18 months
instead of 6 to 12 months, Jimenez cannot show that his substantial rights have
been affected.       Jimenez’s original conviction for possession with intent to
distribute marijuana carried a statutory maximum term of imprisonment of 40
years.7 This offense is therefore a Class B felony,8 and the maximum term of




      2
          United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
      3
          United States v. Olano, 507 U.S. 725, 732-37 (1993).
      4
          United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005).
      5
          See 18 U.S.C. § 3583(e)(3).
      6
          United States v. Mathena, 23 F.3d 87, 90-93 (5th Cir. 1994).
      7
          21 U.S.C. § 841(b)(1)(B)(vii).
      8
          18 U.S.C. § 3559(a)(2).
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imprisonment on revocation of supervised release is 36 months.9 By itself, the
district court’s erroneous selection of the incorrect guideline range is not enough
to demonstrate that the “substantial rights” prong of the plain error test is
satisfied.10 Although the 36 month prison term imposed by the district court
exceeded both the 6 to 12 month and 12 to18 month guideline ranges, the district
court supported its upward departure from the guidelines by noting Jimenez’s
absconding from justice for 18 months and the drug treatment opportunity that
a 36 month term would afford. Jimenez has failed to demonstrate that there is
a “reasonable probability” he would have received a different term of
imprisonment but for the guideline calculation error.
       AFFIRMED.




       9
           18 U.S.C. § 3583(e)(3).
       10
          See, e.g., United States v. Gonzalez, 253 Fed. App’x 387, 388 (5th Cir. 2007)
(collecting cases).
