     Case: 14-40389        Document: 00513024990        Page: 1    Date Filed: 04/29/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 14-40389                        United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
UNITED STATES OF AMERICA,                                                     April 29, 2015
                                                                             Lyle W. Cayce
                Plaintiff – Appellee,                                             Clerk

v.

SANDRA RIVERA,

                Defendant – Appellant.




                    Appeal from the United States District Court
                         for the Southern District of Texas


Before STEWART, Chief Judge, * and KING and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Sandra Rivera violated the conditions of her supervised release. The
district court rejected the within-Guidelines recommendation of the magistrate
judge and departed upward, imposing the five-year maximum revocation
sentence. Rivera timely appealed her revocation sentence, arguing that the
district court relied upon improper considerations when it imposed it. Because
Rivera has not satisfied the fourth prong of the plain-error standard, we affirm.




      *   Carl E. Stewart, Chief Judge, concurring in the judgment only.
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                                          I.
      In 2001, Rivera pleaded guilty to possession of cocaine with intent to
distribute and was sentenced to 121 months’ imprisonment. After her release
from prison, Rivera was deported to Mexico and began serving her five-year
term of supervised release. Rivera violated the conditions of her supervised
release by committing two new law violations—illegal reentry and murder—
and by violating a special condition that prohibited her from illegally
reentering the United States. 1 As to the murder, Rivera pleaded no contest in
state court and received a 28-year sentence, but she was never charged with or
convicted of illegal reentry.
      The probation officer prepared a worksheet that calculated a Guidelines
range of 24–30 months’ imprisonment for the violations and noted that the
statutory maximum revocation sentence was five years. At a final revocation
hearing before the magistrate judge, Rivera admitted the violations and asked
for a sentence at the low end of the Guidelines to run concurrently with her 28-
year state sentence.     The magistrate judge recommended a revocation of
supervised release and a within-Guidelines sentence of 28 months to run
consecutive to her state sentence.
      Rivera requested and received a hearing before the district court to
review the magistrate judge’s sentencing recommendation, and during this
hearing, the district court made numerous references to the seriousness of the
murder and to the court’s desire to provide a just punishment. The district
court began by asking why Rivera had not been charged with illegal reentry,
noting that “this is the most serious one I’ve ever had in front of me where
someone returns illegally and then the new law violation is murder.” The



      1  Rivera’s conditions of supervised release required that she commit no new law
violations and separately required that she not illegally reenter the United States.
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                                    No. 14-40389
district court noted that Rivera would have faced 57–71 months had she been
convicted of illegal reentry and expressed surprise that she was not charged
with that crime. The district court then stated:


         I can tell you, Ms. Rivera, because I don’t make it a habit of keeping
         from people what concerns me. I just tell you, in case you want to
         try to address and convince me otherwise, I actually think the
         magistrate judge was extremely generous with her
         recommendation. I’m prepared to upwardly—vary upwardly
         depart and give you the five years. You committed a murder. I
         just don’t know that it gets any worse than that. So, if you were
         taking issue with the recommendation, which I’m not bound to
         accept, I can tell you right now that I thought it was very, very
         generous. I mean, you graduated from trafficking cocaine to killing
         someone.


         After delivering these remarks, the district court asked to hear from
Rivera’s counsel. Rivera’s counsel recounted her transfer from prison to a
medical facility due to mental illness and explained that she had suffered from
mental illness since childhood. When the district court asked why Rivera
appeared to be smiling and whether counsel doubted her competency, counsel
responded that he did not doubt Rivera’s competency, that Rivera meant no
disrespect, and that Rivera was aware of her circumstances and had asked for
a review of the sentence recommendation because she wanted her sentence to
run concurrently with her state murder sentence. Counsel then explained that
“[t]his unfortunately stems from childhood issues where she was the victim of
sexual abuse at the hands of a relative, along with another minor relative of
hers.”
         The district court responded: “What does? The fact that she traffics [sic]
cocaine or the fact she kills people with screwdrivers and razors?” Counsel
clarified that he was simply advising the court of the reason for her mental

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                                     No. 14-40389
illness and transfer to a medical facility, and the reason that he did not doubt
her competency. Counsel also advised the district court that he had spoken to
Rivera, “[s]he has a very clear memory of everything that I’ve asked her,” and
she understood everything that was happening. Counsel also mentioned that
Rivera had stopped taking her prescribed medication because she did not like
the side effects, but he believed that this did not affect Rivera’s ability to
understand what was happening.
          The district court then interjected: “she’s almost laughing. She’s about
to get a five-year sentence, which I’m going to run consecutively, and she
apparently thinks this is all funny.” At the district court’s invitation, Rivera’s
counsel conferred with his client. When they had finished conferring, the
district court asserted that it had “the right to consider 3553 to determine what
sentence is appropriate,” and the court asked whether it should consider
anything else on Rivera’s behalf. Counsel then notified the district court that
Rivera had been smiling because “she was reacting to the translation and the
things [counsel] was saying about the medicine that she was taking and the
side effects,” and she was not laughing at the court.
          In response, the district court stressed the seriousness and brutality of
the murder and the insufficiency of the punishment that Rivera had received
for it:


          The fact that she’s before the Court on probably the most serious
          allegation, new law violation that I’ve ever considered. And the
          murder that she committed was horrific. I’m looking here at a
          statement that she gave on that case, and she killed this person
          with a knife, a hammer and a screwdriver, stabs him in the neck
          with a screwdriver. Extremely violent. And the fact is that the
          sentence of 28 years in the state system isn’t really 28 years. Your
          expected parole eligibility is November 20th of 2025, which is
          really only 11 years from now. So a 28-year sentence is not, in
          effect, a 28 year sentence, as far as I know. On top of that, I’ve

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                                    No. 14-40389
      been told that you have a burglary conviction . . . where the
      sentence ran concurrent to the sentence that she received in Bexar
      County for the murder. . . . So she already got an additional benefit
      by having another criminal episode run concurrent to the sentence
      that she received in state court.


Rivera, her counsel, and the probation officer clarified that Rivera’s burglary
sentence had run concurrently with her federal drug sentence, not her state
murder sentence. Rivera’s counsel then advised that “we’re just asking for
leniency as much as the Court can muster given the situation.” The district
court responded by noting that Rivera could have been charged with and
convicted of illegal reentry, that her Guidelines range for the offense would
have been 57–71 months, and that because of the five-year statutory
maximum, the district court was “capped at giving her less than what she
would have received for the illegal re-entry after deportation.”
      Rivera’s counsel and the government indicated that they had nothing
further to add, and the district court departed upward to the maximum,
sentencing Rivera to five years’ imprisonment. This appeal followed.
                                          II.
      Ordinarily, this court reviews revocation sentences under a “plainly
unreasonable” standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011). As Rivera concedes, however, her failure to object in the district court
results in plain-error review. United States v. Whitelaw, 580 F.3d 256, 259–60
(5th Cir. 2009); Fed. R. Crim. P. 52(b).
                                          III.
      18 U.S.C. § 3583(e) provides in pertinent part:


      The [district] court may, after considering the factors set forth in
      section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6),
      and (a)(7), revoke a term of supervised release, and require the

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                                  No. 14-40389
      defendant to serve in prison all or part of the term of supervised
      release authorized by statute for the offense that resulted in such
      term of supervised release without credit for time previously
      served on postrelease supervision, if the court . . . finds by a
      preponderance of the evidence that the defendant violated a
      condition of supervised release, except that a defendant whose
      term is revoked under this paragraph may not be required to serve
      on any such revocation more than 5 years in prison if the offense
      that resulted in the term of supervised release is a class A felony
      ....


18 U.S.C. § 3583(e)(3). In Miller, this court observed that § 3583(e) requires
district courts to consider certain § 3553 factors but omits from this list §
3553(a)(2)(A), which concerns “the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). In view of Congress’s
deliberate omission, Miller held that “it is improper for a district court to rely
on § 3553(a)(2)(A) for the modification or revocation of a supervised release
term.” 634 F.3d at 844. Thus, although this may be counterintuitive, when
imposing a sentence for violation of conditions of supervised release, district
courts may not consider the need for the sentence imposed to reflect the
seriousness of the offense or to provide just punishment for the offense. Id.
After Miller, this court clarified 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. Walker, 742 F.3d 614, 616 (5th
Cir. 2014).
      This appeal raises the single question of whether the seriousness of
Rivera’s murder and the need to provide just punishment were dominant
factors in Rivera’s revocation sentence, or rather only secondary concerns or
additional justifications. Our review of the record compels us to reach the

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                                  No. 14-40389
former conclusion.    The district court did mention Rivera’s unrepentant
demeanor at sentencing, the fact that Rivera had not been charged with or
convicted of illegal reentry, and the fact that Rivera had previously received
the benefit of a concurrent sentence after her commission of a prior offense.
However, the seriousness of Rivera’s murder and the need to provide a just
punishment were dominant factors in the district court’s sentencing decision.
Throughout the hearing, the district court repeatedly stressed the seriousness
and brutality of the murder and the inadequacy of the state prison sentence
that Rivera had received for it. These were not simply passing remarks; they
were the district court’s main focus throughout the hearing.
      The district court opened by stating that “this is the most serious one
I’ve ever had in front of me where someone returns illegally and then the new
law violation is murder,” and the court continued “I’m prepared to upwardly—
vary upwardly depart and give you the five years. You committed a murder. I
just don’t know that it gets any worse than that.” The district court described
the murder as “horrific,” “[e]xtremely violent,” and “the most serious
allegation, new law violation that I’ve ever considered.” The district court
suggested that Rivera’s 28-year state prison sentence was not long enough
because she would become eligible for parole after only 11 years.          These
observations were the principal justifications that the district court offered for
its above-Guidelines, maximum sentence, and the district court made only a
passing reference to its “right to consider 3553 to determine what sentence is
appropriate.” This case is different from Walker, in which the district court
made a brief reference to an impermissible consideration when it pronounced
the revocation sentence, and it did so only after it explicitly addressed several
permissible considerations. 742 F.3d at 617.
      Thus, the district court erred by making the seriousness of the murder
and the need for just punishment dominant factors in Rivera’s revocation
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                                  No. 14-40389
sentence. The district court’s error was also plain. For a legal error to be
“plain,” it must be “clear or obvious, rather than subject to reasonable dispute.”
Puckett v. United States, 556 U.S. 129, 135 (2009). In light of Miller, there is
no reasonable dispute as to whether a district court may rely upon the
seriousness of the offense and the need for just punishment when sentencing
a defendant for violation of the conditions of his supervised release. Congress’s
choice to prohibit district courts from relying on these considerations—which
naturally and permissibly inform almost all other sentencing decisions—is
admittedly quite strange for a sentencing scheme that generally views just
punishment as an appropriate sentencing goal. See 18 U.S.C. § 3553(a)(2)(A).
However, that Congress’s command is counterintuitive does not make its
command unclear. Miller plainly holds that under § 3583(e), district courts
may not consider the seriousness of the offense or the need for just punishment
when imposing a revocation sentence.
      Not all plain errors are curable, however—this court may correct a plain
error only if it “affected the appellant’s substantial rights.” Puckett, 556 U.S.
at 135. “[I]n the ordinary case,” this “means he must demonstrate that it
affected the outcome of the district court proceedings.” Id. (internal quotation
marks omitted).      “When the rights acquired by the defendant relate to
sentencing, the outcome he must show to have been affected is his sentence.”
Id. at 142 n.4 (internal quotation marks omitted). “A sentencing error affects
a defendant’s substantial rights if he can show a reasonable probability that,
but for the district court’s [error], he would have received a lesser sentence.”
United States v. John, 597 F.3d 263, 284–85 (5th Cir. 2010) (internal quotation
and alteration marks omitted).
      Rivera’s Guidelines range was 24–30 months, and the magistrate judge
had recommended a sentence of 28 months.            Instead, the district court
sentenced her to 60 months—the statutory maximum—and it relied primarily
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                                       No. 14-40389
on the seriousness of the murder when it did so. Therefore, Rivera has shown
a reasonable probability that, but for the district court’s error, she would have
received a lesser sentence.
         Even if the first three prongs of plain-error review are satisfied, this does
not end the analysis. Under the fourth prong, “the court of appeals has the
discretion to remedy the error—discretion which ought to be exercised only if
the error seriously affects the fairness, integrity or public reputation of judicial
proceedings.”      Puckett, 556 U.S. at 135 (internal quotation and alteration
marks omitted) (emphasis in original). The government did not brief the fourth
prong.       Nor did Rivera, except to argue that Miller error automatically
warrants correction on plain-error review. We must reject this per se fourth-
prong argument. Rivera’s proffered approach would collapse the fourth prong
into the first three and would contravene binding precedent that directs us to
consider the facts of each case before finding that the fourth prong has been
met. 2
         Thus, in asking us to exercise our discretion, Rivera points to nothing
beyond the district court’s error and the increase in her sentence that the error
may have caused. 3 Even assuming that Rivera had made a fourth-prong



         2See Puckett, 556 U.S. at 142 (“The fourth prong is meant to be applied on a case-
specific and fact-intensive basis. We have emphasized that a per se approach to plain-error
review is flawed.”) (internal quotation marks omitted); United States v. Olano, 507 U.S. 725,
737 (1993) (“[A] plain error affecting substantial rights does not, without more, satisfy [the
fourth prong], for otherwise the discretion afforded by Rule 52(b) would be illusory.”); United
States v. Wooley, 740 F.3d 359, 369 (5th Cir. 2014) (“This circuit has repeatedly emphasized
that even when we find that the first three factors have been established, this fourth factor
is not ‘automatically satisfied.’”) (quoting United States v. Garza, 706 F.3d 655, 663 (5th Cir.
2013)); United States v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009) (“Not every error that
increases a sentence need be corrected by a call upon plain error doctrine.”).

         In the past, we have declined to remedy some errors that may have caused sentence
         3

increases. See, e.g., United States v. Chavez–Hernandez, 671 F.3d 494, 501 (5th Cir. 2012)
(affirming an improperly enhanced sentence that exceeded the high end of the correct
Guidelines range by 23 months); United States v. Jones, 489 F.3d 679, 682 (5th Cir. 2007)
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                                       No. 14-40389
argument other than a per se one, the facts here do not warrant correction of
the error.     At the hearing on Rivera’s supervised release revocation, in
considering the proper sentence, the district court observed that Rivera was
never charged with illegal reentry following deportation even though she had
committed the crime. 4 The district court further noted that an illegal reentry
conviction would have resulted in a Guidelines range of 57–71 months. Under
the circumstances of this case, we cannot say that the district court’s revocation
sentence of 60 months impugns the fairness, integrity, or public reputation of
the court system.
                                             IV.
       Because Rivera failed to raise an objection in the district court and
because we are not persuaded that the fourth prong of the plain-error standard
has been met, we AFFIRM the judgment of the district court.




(affirming sentence where the district court had departed 23 months above the high end of
the Guidelines range based on its improper consideration of the defendant’s arrest record);
see also Ellis, 564 F.3d at 378–79 (“[E]ven if an increase in a sentence be seen as inevitably
‘substantial’ in one sense it does not inevitably affect the fairness, integrity, or public
reputation of judicial process and proceedings.”). We have also refused to correct plain errors
when, as here, the complaining party makes no showing as to the fourth prong. See, e.g.,
United States v. Chavez–Trejo, 533 F. App’x 382, 385–86 (5th Cir. 2013) (unpublished);
United States v. Saleh, 257 F. App’x 740, 745 (5th Cir. 2007) (unpublished).

       4 This fact distinguishes Rivera’s case from United States v. Hudson, 457 F. App’x 417
(5th Cir. 2012) (unpublished), upon which she relies for her argument that Miller error
automatically warrants correction on plain-error review. Of course, Hudson never held
anything so broad; it merely concluded that all four prongs of the plain-error standard were
met in that particular case. Id. at 419. In any event, unlike in Hudson, the district court in
this case also considered Rivera’s uncharged conduct during the sentencing hearing.
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