     Case: 19-50969   Document: 00515432490   Page: 1   Date Filed: 05/28/2020




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

                                                                       FILED
                              No. 19-50969                         May 28, 2020
                            Summary Calendar
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff - Appellee

v.

ROBERTO LUJAN, JR., also known as Robert Lujan, Jr.,

                                         Defendant - Appellant

Consolidated w/ No. 19-50977

UNITED STATES OF AMERICA,

                                         Plaintiff - Appellee

v.

ROBERTO LUJAN, JR.,

                                         Defendant - Appellant


                Appeals from the United States District Court
                      for the Western District of Texas
                           USDC No. 7:04-CR-47-1
                           USDC No. 7:11-CR-360-1
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                                      No. 19-50969
                                    c/w No. 19-50977

Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Roberto Lujan, Jr., challenges:            the concurrent, within-Sentencing
Guidelines sentences of 24 months, imposed upon revocation of his supervised
release, which was part of his sentence in 2005 for aiding and abetting the
possession of heroin, with intent to distribute, and possession of a firearm in
furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 2, 21 U.S.C.
§ 841(a)(1), and 18 U.S.C. § 924(c); and, for a separate offense, the consecutive,
below-Guidelines sentence of 24 months, imposed upon revocation of his
supervised release, which was part of his sentence in 2012 for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He contends the
district court:      considered impermissible factors in determining these
revocation sentences; and failed to explain the sentences adequately.
       Regarding Lujan’s sentencing challenges, “we review a sentence imposed
on revocation of supervised release under a plainly unreasonable standard, in
a two-step process”. United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013)
(internal quotation marks and citation omitted). “First, we ensure that the
district court committed no significant procedural error, such as failing to
consider the [18 U.S.C.] § 3553(a) [sentencing] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen
sentence . . . .” Id. (internal quotation marks and citation omitted). “If the
district court’s sentencing decision lacks procedural error, this court next
considers the substantive reasonableness of the sentence imposed.”                        Id.
(citation omitted). “A sentence is substantively unreasonable if it (1) does not


       * 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. 19-50969
                                 c/w No. 19-50977

account for a factor [under § 3553(a)] that should have received significant
weight, (2) gives significant weight to an irrelevant or improper factor, or (3)
represents a clear error of judgment in balancing the sentencing factors.” Id.
at 332 (internal quotation marks and citation omitted). “If we find the sentence
unreasonable, we may reverse the district court only if we further determine
the error was obvious under existing law.” Id. at 326 (internal quotation marks
and citation omitted).
      As he concedes, Lujan, however, did not raise these issues in district
court; therefore, review is only for plain error. E.g., United States v. Fuentes,
906 F.3d 322, 325 (5th Cir. 2018) (citations omitted), cert. denied, 139 S. Ct.
1363 (2019); United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
Under that standard, Lujan must show a forfeited plain error (clear or obvious
error, rather than one subject to reasonable dispute) that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes that showing, we have the discretion to correct such reversible plain
error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
      Concerning Lujan’s claim that the court erred by failing adequately to
explain the sentences imposed, a sentencing judge need only “set forth enough
to satisfy the appellate court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal decisionmaking
authority”. Rita v. United States, 551 U.S. 338, 356 (2007) (citation omitted).
If neither party has presented nonfrivolous reasons for imposing a different
sentence, “sentences within the Guidelines require little explanation”. United
States v. Mondragon-Santiago, 564 F.3d 357, 362 (5th Cir. 2009) (internal
quotation marks and citations omitted).




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                                  No. 19-50969
                                c/w No. 19-50977

      Lujan presented little in the way of argument at sentencing, and the
court clearly articulated its reliance on the Guidelines, as well as statutory
sentencing factors, in determining his sentences. Lujan, therefore, has not
shown the requisite plain (clear or obvious) error.
      Regarding Lujan’s claim that the court considered impermissible factors
before imposing the sentences at issue, the court stated it had reviewed the
policy statements in Chapter Seven of the Guidelines and the sentencing
factors set forth in 18 U.S.C. § 3553(a).     Lujan correctly notes that some
§ 3553(a) factors—namely, those listed in § 3553(a)(2)(A)—are not appropriate
considerations in the revocation context. United States v. Miller, 634 F.3d 841,
844 (5th Cir. 2011) (citations omitted).      We have held, however, “that a
sentencing error occurs when an impermissible consideration is a dominant
factor in the court’s revocation sentence, but not when it is merely a secondary
concern or an additional justification for the sentence”. United States v. Rivera,
784 F.3d 1012, 1017 (5th Cir. 2015) (citation omitted). There is no indication
a § 3553(a)(2)(A) factor played a dominant role here; and Lujan, therefore, fails
to show the requisite plain (clear or obvious) error.
      AFFIRMED.




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