     Case: 17-50094      Document: 00514250841         Page: 1    Date Filed: 11/28/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 17-50094                                   FILED
                                  Summary Calendar                         November 28, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ARCHIE DALE GOODMAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:15-CR-268-1


Before WIENER, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
       In 2012, Archie Dale Goodman pled guilty to possession of stolen mail
and aiding and abetting. He was sentenced to 21 months of imprisonment,
three years of supervised release, and restitution in the amount of $2,685.90.
His supervised release had previously been revoked three times. In 2016, the
probation officer filed a petition, alleging that Goodman violated four
conditions of his supervised release. The district court revoked Goodman’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50094

supervised release and sentenced him to the 24-month statutory maximum
revocation sentence with no additional term of supervised release. He timely
appealed.
      Goodman argues that the district court improperly considered the factors
in 18 U.S.C. § 3553(a)(2)(A) in imposing his sentence. As Goodman concedes,
he did not raise this issue in the district court and, therefore, review is limited
to plain error. See United States v. Whitelaw, 580 F.3d 256, 259–60 (5th Cir.
2009). To demonstrate plain error, Goodman must show a clear or obvious
forfeited error that affected his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, this court would have
the discretion to correct the error but should do so only if the error seriously
affects the fairness, integrity, or public reputation of the proceedings. See id.
      A district court may not base a revocation sentence on certain factors
listed at § 3553(a)(2)(A). United States v. Miller, 634 F.3d 841, 844 (5th Cir.
2011). Those prohibited factors include “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.” § 3553(a)(2)(A). It is clear error to
base the sentence on a forbidden § 3553(a)(2)(A) factor.        United States v.
Rivera, 784 F.3d 1012, 1017–18 (5th Cir. 2015). However, if the forbidden
factor was not “a dominant factor” but rather “merely a secondary concern or
an additional justification for the sentence” there is no error. Id. at 1017.
      The record indicates that the district court implicitly considered the
§ 3553(a) factors in imposing Goodman’s sentence. The district court did not
expressly state that it considered the factors in § 3553(a)(2)(A), and the record
does not indicate that the district court improperly considered those factors.
Unlike the court in Miller, the district court here did not mention lack of
“respect for the law,” and the comments made are consistent with the



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                                 No. 17-50094

permissible factor of deterrence. § 3553(a)(2)(B). At a minimum, then, any
error was not clear or obvious. See Puckett, 556 U.S. at 135; United States v.
Gonzalez-Perez, 537 F. App’x 589, 590 (5th Cir. 2013).
      Further, Goodman has not shown that the district court’s alleged error
affected his substantial rights.    The district court considered Goodman’s
arguments, his history and characteristics, his four violations of his supervised
release, his three prior supervised release revocations, the recommended policy
guidelines range of seven to 13 months of imprisonment, and the 24-month
statutory maximum sentence. The record does not unambiguously indicate
that, but for the district court’s improper consideration of impermissible
factors, there is a reasonable probability that Goodman would have received a
lower sentence.
      In addition, Goodman asserts that the district court did not adequately
explain its finding that he violated the conditions of supervised release by
failing to maintain employment. At the revocation hearing, the district court
questioned Goodman concerning the alleged violations of his supervised
release terms.    Although Goodman stated vaguely that he contacted his
probation officer on October 9 or 10, 2016, and told her that he had a new job
in Big Springs, Goodman conceded that he did not have a job after October 8,
2016. Thus, the district court did not base its finding that Goodman failed to
maintain employment solely on the allegations in the petition. Because the
record shows that the reasons for the revocation were obvious, the absence of
specific reasons for the district court’s finding is harmless. See United States
v. McCormick, 54 F.3d 214, 220 (5th Cir. 1995).
      Finally, Goodman argues that the warrant for his arrest was not valid
because it was not supported by sworn facts, relying on United States v.
Vargas-Amaya, 389 F.3d 901, 902 (9th Cir. 2004). Goodman concedes that this



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                                No. 17-50094

argument is foreclosed by this court’s precedent in United States v. Garcia-
Avalino, 444 F.3d 444, 445–47 (5th Cir. 2006).
     AFFIRMED.




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