     Case: 10-50990     Document: 00511647325         Page: 1     Date Filed: 10/27/2011




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

                                                                            FILED
                                                                         October 27, 2011
                                     No. 10-50990
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JEREMY WATNICK,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:06-CR-190-1


Before REAVLEY, SMITH and PRADO, Circuit Judges.
PER CURIAM:*
        Jeremy Watnick appeals his supervised release revocation and 24-month
revocation sentence. He incorrectly asserts that he did not receive notice that
he allegedly violated a condition of his supervised release by committing
burglary and that, due to the lack of notice, he was unable to amass evidence to
mitigate the burglary charge. Notice of the burglary violation was provided by
the second amended warrant petition.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50990

      Next Watnick asserts that he was denied due process because the district
court did not provide a written statement of reasons for its decision. At the
outset of the revocation hearing, Watnick’s attorney informed the court that
Watnick intended to plead true to the burglary violation. The court admitted
Watnick’s written, notarized confession to the burglary into the record without
objection and relied upon the confession in finding the violation of supervised
release. Watnick never indicated that the confession was invalid. He fails to
show that the district court’s failure to provide a statement of reasons affected
the outcome of the proceeding or that it affects the fairness, integrity, or public
reputation of judicial proceedings. He thus fails to establish plain error. See
Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009).
      Watnick also alleges that the district court violated his due process rights
by sentencing him based upon findings that he committed assault and that he
stole drugs, when there was no evidence of those offenses in the record. The
district court simply mentioned the assault and theft in discussing Watnick’s
problems. He shows no error, plain or otherwise.
      In addition, Watnick contends that the district court erred in calculating
the guidelines range based upon a finding that he committed burglary. He
suggests that reliance upon the burglary violation was improper because the
prosecutor did not present it during the revocation hearing and that the district
court’s burglary finding was erroneous because he did not plead true to the
burglary during the hearing. Watnick fails to show that the district court’s
reliance upon his confession to the burglary was clear or obvious error. See
Puckett, 129 S. Ct. at 1429.
      Next Watnick contends that his sentence was substantively unreasonable
because he was denied due process, the district court erred in calculating the
guidelines range, and the court failed to consider the relevant sentencing factors
under 18 U.S.C. § 3553(a). The alleged due process violations and guidelines
calculation error are not considered in determining whether a sentence was

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                                 No. 10-50990

substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007). We
reject his claim that the 24-month sentence failed to account for the nature and
circumstances of the minor supervised release violations he admitted because
the district court also found that he committing burglary.
      Watnick further asserts that his sentence was substantively unreasonable
because it was based upon factual findings for which there was no evidence in
the record.   Properly construed, this argument challenges the procedural
reasonableness of the sentence. See Gall, 552 U.S. at 51. Regardless of how it
is characterized, however, Watnick fails to show that the purported findings
affected the district court’s decision to impose a 24-month sentence. The court
explicitly found that he committed burglary while on supervised release.
Accordingly, he fails to established plain error. See Whitelaw, 580 F.3d at 262-
63.
      Additionally, Watnick contends that the 24-month sentence was
substantively unreasonable because it did not account for his need for drug
treatment and instead sought to punish him for his drug use without providing
notice that his drug problem would be a ground for revoking his supervised
release. We find no error. The district court did not rely upon Watnick’s drug
abuse as a ground for revoking his supervised release, and the Sentencing
Reform Act, 18 U.S.C. § 3582(a), “precludes federal courts from imposing or
lengthening a prison term in order to promote a criminal defendant’s
rehabilitation.” Tapia v. United States, 131 S. Ct. 2382, 2385-86 (2011).
      Finally, Watnick asserts that the alleged errors cumulatively amount to
“clear error.” He fails to show that the aggregation of any errors so fatally
infected the proceeding as to violate its fundamental fairness. See United States
v. Fields, 483 F.3d 313, 362 (5th Cir. 2007).
      AFFIRMED.




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