     Case: 10-30135 Document: 00511276169 Page: 1 Date Filed: 10/27/2010




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

                                                 FILED
                                                                          October 27, 2010
                                     No. 10-30135
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

FREDERICK ROBERTSON,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                                 No. 3:09-CR-111-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Frederick Robertson appeals the 24-month sentence imposed following the
revocation of his term of supervised release. He argues that the sentence, which

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-30135 Document: 00511276169 Page: 2 Date Filed: 10/27/2010

                                   No. 10-30135

exceeds the guideline range of 8-14 months, is procedurally and substantively
unreasonable.
      This court has not yet determined what standard of review applies to sen-
tences imposed on revocation of supervised release in the wake of United States
v. Booker, 543 U.S. 220 (2005). United States v. Jones, 484 F.3d 783, 791-92 (5th
Cir. 2007). Because, however, Robertson did not object to the sentence in the
district court, and because he failed to raise there the specific claims of procedur-
al error that he argues on appeal, review is for plain error only. See id.; United
States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
      To show plain error, Robertson must first show an error that is clear or ob-
vious and that affects his substantial rights. See United States v. Baker, 538
F.3d 324, 332 (5th Cir. 2008). Robertson contends that the district court erred
in basing its sentence on allegations that, in separate incidents, he assaulted his
daughter and his girlfriend with a firearm and that the court erred by failing
properly to explain its upward variance. Contrary to Robertson’s argument, the
allegations in question were not unsubstantiated.
      The district court’s finding that Robertson assaulted his daughter and his
girlfriend with a handgun was based on the probation officer’s testimony at the
revocation hearing. To the extent that the probation officer’s testimony was
based on statements made by the victims, it may have been hearsay, but the
court committed no procedural error by considering such evidence in determin-
ing Robertson’s sentence. See United States v. West, 58 F.3d 133, 138 (5th Cir.
1995). The testimony of Robertson’s mother contradicted the probation officer’s
testimony regarding the altercation between Robertson and his daughter, but
the court implicitly resolved the conflict in favor of the probation officer’s testi-
mony by finding that Robertson had committed the alleged violation. Because
the factual determination was plausible in light of the entire record, it was not
clearly erroneous. See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).
      Robertson appears to contend that the district court’s failure to explain its

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                                  No. 10-30135

upward variance from the guideline range, in terms of the sentencing factors of
18 U.S.C. § 3553(a), renders his sentence unreasonable. But the court was not
required to mention the § 3553(a) factors explicitly when pronouncing sentence.
See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
      The court’s consideration of the statutory factors, specifically § 3553(a)(1),
the nature of the offense and the history and characteristics of the defendant, is
implicit in the court’s discussion of the assaults, the lengthy criminal history,
and the previous revocation of a term of supervised release. Robertson has not
shown error, plain or otherwise, with respect to the procedural aspects of his
sentencing.
      Robertson’s argument that the sentence is substantively unreasonable is
largely premised on his contention that it was error for the court to base its up-
ward variance on the allegations regarding his assaults. As the previous discus-
sion illustrates, there was no reversible procedural error in the factual findings
as to these allegations or in the court’s consideration of the assaults in determin-
ing the sentence.
      On revocation of supervised release, the district court may impose any sen-
tence that falls within the statutory maximum term. See Whitelaw, 580 F.3d at
264. Revocation sentences exceeding the guideline range but not exceeding the
statutory maximum have been upheld as a matter of routine against challenges
that the sentences were substantively unreasonable. See id. at 265. Because the
sentence does not exceed the statutory maximum, it is not plain error. See id.
      AFFIRMED.




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