     Case: 14-50893      Document: 00513070090         Page: 1    Date Filed: 06/08/2015




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

                                                                                  FILED
                                                                                June 8, 2015
                                    No. 14-50893
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LUIS RAY RUIZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:14-CR-165-1


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Luis Ray Ruiz appeals the revocation of his supervised release for his
conviction of possession with the intent to distribute marijuana and the
resulting 24-month above-guidelines sentence. Ruiz argues that the district
court erred by giving him inadequate notice of the revocation hearing and by
relying on insufficient evidence to find that Ruiz violated his supervised
release. Ruiz also argues that his sentence was plainly unreasonable. Because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50893

Ruiz did not raise any of these arguments in the district court, our review is
limited to plain error. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th
Cir. 2009). To show plain error, Ruiz must show a forfeited error that is clear
or obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he 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.
      As to Ruiz’s notice argument, the July 3, 2014, revocation petition set
out the essential facts and the nature of the charge. The August 12, 2014
hearing date was set one week in advance, and the Government’s August 11,
2014 motion to revoke did nothing more than adopt the facts and allegations
set out in the July 3 petition. Ruiz has not shown a forfeited error that was
clear or obvious. See Puckett, 556 U.S. at 135. Moreover, Ruiz fails to explain
what defense he would have raised or what evidence he would have presented
had he received more notice of the revocation hearing. Thus, Ruiz has not
shown that any error affected his substantial rights. See id.
      As to Ruiz’s sufficiency of the evidence argument, the district court “may
revoke a defendant’s supervised release if it finds by a preponderance of the
evidence that a condition of release has been violated.”        United States v.
Minnitt, 617 F.3d 327, 332 (5th Cir. 2010) (internal quotation marks and
citation omitted). The district court read the allegations and conditions of
supervised release as stated in the revocation petition, after which Ruiz was
asked whether the “conditions were true or not true.” Ruiz responded “yes.”
Ruiz made no objection to the factual basis and, when asked if he had any
comment, apologized and stated that he had come “a long way from [his] first
and second violations,” but had made some “bad decisions” recently. Nothing
in the record suggests that Ruiz disputed the allegations in the revocation



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                                 No. 14-50893

petition or wished to present evidence or witnesses in his defense. Ruiz has
therefore not shown a forfeited error that was clear or obvious and that affected
his substantial rights. See Puckett, 556 U.S. at 135.
      Finally, with respect to Ruiz’s argument that his 24-month sentence was
plainly unreasonable in light of his mitigating factors, we review for plain
error. See Whitelaw, 580 F.3d at 259-60. Although the guidelines range of
imprisonment was five to 11 months, see U.S.S.G. § 7B1.4(a), we routinely
uphold revocation sentences exceeding the guidelines range but not exceeding
the statutory maximum. United States v. Warren, 720 F.3d 321, 332 (5th Cir.
2013); Whitelaw, 580 F.3d at 265. Ruiz made only a cursory mention of his
devotion to Christianity at sentencing, and he did not argue at sentencing, as
he does on appeal, that he faced danger from traffickers in Del Rio. Thus, Ruiz
has not shown any error, plain or otherwise. See Warren, 720 F.3d at 326;
Whitelaw, 580 F.3d at 265.
      AFFIRMED.




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