     Case: 12-50085       Document: 00512081868         Page: 1     Date Filed: 12/12/2012




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

                                                                            FILED
                                                                        December 12, 2012
                                     No. 12-50085
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SEVERO GREGORIO GONZALES, also known as Severo Gregario Gonzales,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:09-CR-32-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Severo Gregorio Gonzales appeals the 18-month term of imprisonment
imposed following the revocation of his supervised release for importation of
marijuana. He argues that his sentence, which exceeds the range set forth in
the nonbinding policy statements set forth in Chapter Seven of the Sentencing
Guidelines but is within the statutory maximum, is procedurally unreasonable
because the district court failed to consider the applicable 18 U.S.C. § 3553(a)
sentencing factors and failed to articulate its reasons for imposing sentence. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50085

further argues, in reliance on United States v. Smith, 440 F.3d 704, 708 (5th Cir.
2006), that the sentence is substantively unreasonable because it fails to reflect
the sentencing factors set forth in § 3553(a).
      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.), cert. denied, 132 S. Ct. 496 (2011). As Gonzales concedes, however,
because he raised no objections in the district court, review is for plain error.
See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). Under the
plain error standard, Gonzales must show a clear or obvious error that affected
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
This court has discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. Id.
      The district court did not expressly reference § 3553(a) in imposing
sentence. Although the court’s comments in imposing sentence were brief, the
record reflects that the court considered the policy statement range of three to
nine months, Gonzales’s three prior revocations of supervised release, Gonzales’s
comments at the revocation hearing, defense counsel’s arguments in mitigation
of sentence, and the Government’s arguments that a sentence above the
recommended range was warranted.            The record reflects that the court
considered the nature and circumstances of Gonzales’s supervised release
violation as well as his history and characteristics in imposing sentence and thus
implicitly considered the § 3553(a) factors. See § 3553(a)(1); Whitelaw, 580 F.3d
at 262-65; United States v. Gonzales, 250 F.3d 923, 930 (5th Cir. 2001). The
district court’s explanation, in the context of the revocation hearing, was
sufficient, and, thus, Gonzales has not shown clear or obvious error.          Cf.
Whitelaw, 580 F.3d at 261-62 (determining that lack of explicit statement setting
forth reasons for imposition of sentence outside of recommended guidelines
range was not clear or obvious error). Nothing in the record suggests that a
more thorough explanation would have resulted in a shorter sentence, and there

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                                  No. 12-50085

is no suggestion in the record that the district court considered any improper
factor or would impose a different sentence on remand. See id. at 264-65.
Gonzales has not demonstrated plain error with respect to his challenge to the
district court’s explanation of the sentence imposed upon revocation. See id. at
265.
        The court’s comments at sentencing, in the context of the revocation
hearing, reflect that the court was imposing the 18-month sentence on the basis
of Gonzales’s specific history and characteristics, which included that Gonzales’s
admitted cocaine use in October 2011 followed his three prior revocations of
supervised release, one for testing positively for cocaine use and two for
absconding from supervision. See § 3553(a)(1). Contrary to Gonzales’s appellate
argument, the record does not reflect that the sentence “unreasonably fail[ed] to
reflect the statutory sentencing factors.” Smith, 440 F.3d at 708. Gonzales’s
revocation sentence did not exceed the statutory maximum sentence;
accordingly, he has not shown that the sentence imposed constituted plain error.
See Whitelaw, 580 F.3d at 265.
        AFFIRMED.




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