     Case: 15-10697      Document: 00513734053         Page: 1    Date Filed: 10/26/2016




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

                                    No. 15-10697                               FILED
                                  Summary Calendar                      October 26, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GABRIEL DAVILA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-203-1


Before JOLLY, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Gabriel Davila appeals the revocation of his supervised release for his
conviction for unauthorized use of an access device, as well as his revocation
sentence. Davila contends that the district court improperly prevented him
from challenging a Government expert’s opinion that—based on drug-testing
results—Davila had used marijuana twice in May 2015. Davila argues that
this deprived him of the ability to refute the Government’s allegation that he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10697

used marijuana “after April 10, 2015.” However, the Government also alleged
that Davila used marijuana in March 2015, and Davila himself testified that
he had used marijuana twice daily during the two months leading up to March
31, 2015. Because that admission alone was sufficient to support the district
court’s finding that Davila had violated the conditions of his supervised release
by using a controlled substance, we need not address a challenge to an
alternative ground for revocation. See 18 U.S.C. § 3583(e)(3), (g)(1); United
States v. Turner, 741 F.2d 696, 698 (5th Cir. 1984).
      Davila also contends that the district court failed to provide adequate
reasons for his sentence, which was above the advisory range. Davila concedes
that our review is for plain error because he did not raise this specific objection
in the district court. See United States v. Warren, 720 F.3d 321, 332 (5th Cir.
2013); United States v. Whitelaw, 580 F.3d 256, 259–60 (5th Cir. 2009). He
argues that the district court’s explanation was insufficient in light of the
“compelling reasons” he provided for a sentence within the advisory range, but
he relies exclusively on his own testimony and the explanations he provided
for the various violations, while failing to challenge the district court’s finding
that his testimony was not credible.
      The district court found that Davila had committed more than 30
violations of the conditions of his supervised release, including 25 missed
restitution payments and several missed and failed drug tests. The court noted
that it viewed Davila’s violations as “very serious.” The court went on to state
that it had “considered the policy statement range of 4 to 10 months,” but
believed that a sentence within the advisory range was inadequate to
appropriately address Davila’s conduct and the sentencing factors relevant to
a revocation sentence. Instead, the court concluded that a 24-month sentence
was necessary to address those factors. See 18 U.S.C. § 3583(e). Although



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brief, the district court’s explanation is sufficient, in the context of a revocation
sentence, for us to conclude that the sentence is procedurally reasonable. See
United States v. Kippers, 685 F.3d 491, 497–99 (5th Cir. 2012) (“[A] district
court must justify a sentence it imposes upon revocation outside the policy
statement's recommended range so as ‘to allow for meaningful appellate review
and to promote the perception of fair sentencing.’”) (quoting Gall v. United
States, 552 U.S. 38, 50 (2007)); United States v. Gonzales, 500 F. App’x 342,
342–43 (5th Cir. 2012) (unpublished) (concluding that the “explanation, in the
context of the revocation hearing, was sufficient” because the record showed
that the district court implicitly considered the sentencing factors along with
the testimony, advisory range, and sentencing arguments).               Davila also
preserves for further review the argument that any failure on the part of a
district court to provide adequate reasons for a sentence affects a defendant’s
substantial rights by precluding meaningful review. However, he correctly
concedes that the argument is foreclosed. See Whitelaw, 580 F.3d at 262–65
(finding that even where a district court committed clear or obvious error by
failing to state reasons for a sentence outside the guidelines range, the error
did not affect the defendant’s substantial rights). Davila has not demonstrated
plain error with respect to his challenge to the district court's explanation of
the sentence imposed upon revocation.
      Lastly, Davila contends that his sentence represents a clear error of
judgment in balancing the sentencing factors in light of his explanations for
the violations, and he argues that there is “simply nothing in the record
indicating that the district court gave any consideration to the mitigating
factors” he presented.     However, the district court’s finding that Davila’s
testimony was not credible shows that the court considered it. Davila has not
challenged the adverse credibility determination or directed us to other



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“mitigating factors,” and his primary argument for leniency was his own
testimony that he had support from his family and employer. The record
reflects an individualized sentencing decision, and we will not reweigh the
sentencing factors. See Gall, 552 U.S. at 49–51.
      Accordingly, the district court’s judgment is AFFIRMED.




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