     Case: 18-11300      Document: 00515089746         Page: 1    Date Filed: 08/23/2019




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

                                    No. 18-11300                                FILED
                                  Summary Calendar                        August 23, 2019
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GEORGE CORTEZ, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-122-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant George Cortez, Jr., challenges the 36-month
sentence of imprisonment imposed following the revocation of supervised
release for his 2008 conviction for conspiracy to possess with intent to
manufacture and distribute methamphetamine.                  Cortez contends that his
sentence, which exceeded the range provided in the policy statements of the
Sentencing Guidelines, is procedurally and substantively unreasonable.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11300    Document: 00515089746     Page: 2   Date Filed: 08/23/2019


                                 No. 18-11300

      Revocation sentences generally are reviewed under 18 U.S.C. § 3742(a)’s
“plainly unreasonable” standard. United States v. Miller, 634 F.3d 841, 843
(5th Cir. 2011).     Because Cortez failed to object on the procedural
reasonableness grounds he asserts on appeal, we review those arguments for
plain error. See United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009).
Under a plain error standard, Cortez must show a forfeited error that is clear
or obvious and that affected his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). We have discretion to correct such an error,
but will do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      The record shows that the district court was aware of the advisory range,
that it implicitly considered that range, and that it stated that it had
considered all relevant § 3553 factors. See United States v. Smith, 440 F.3d
704, 707 (5th Cir. 2006). The record also shows that the district court heard
Cortez’s mitigation arguments and even discussed some of them with the
parties, but it found those arguments insufficient to excuse Cortez’s continued
violation of the conditions of supervised release. See United States v. Fraga,
704 F.3d 432, 438-39 (5th Cir. 2013). Finally, the district court sufficiently
explained the chosen sentence because its statements, in the context of the
entire hearing, show that it evaluated the various sentencing arguments and
based the sentence on Cortez’s repeated failure to comply with the conditions
of his supervised release. See United States v. Diaz Sanchez, 714 F.3d 289, 294
(5th Cir. 2013). Cortez has not shown that the district court plainly erred or
that his sentence is procedurally unreasonable.
      We review the substantive reasonableness of the sentence for “an abuse
of discretion, examining the totality of the circumstances.” United States v.
Warren, 720 F.3d 321, 332 (5th Cir. 2013).        Although Cortez’s 36-month



                                          2
    Case: 18-11300    Document: 00515089746     Page: 3   Date Filed: 08/23/2019


                                 No. 18-11300

sentence exceeds the policy statement range of 7 to 13 months, it is within the
statutory maximum of 60 months. “We have routinely affirmed revocation
sentences exceeding the advisory range, even where the sentence equals the
statutory maximum.” Id. (internal quotation marks and citation omitted).
Cortez has not shown that the district court failed to account for a factor that
should have received significant weight, gave significant weight to any
irrelevant or improper factors, or clearly erred in balancing the sentencing
factors. See id. Accordingly, Cortez has not established that the district court
abused its discretion or that his sentence is substantively unreasonable.
      The judgment is AFFIRMED.




                                       3
