     Case: 12-50255       Document: 00512098700         Page: 1     Date Filed: 01/02/2013




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

                                                                            FILED
                                                                          January 2, 2013
                                     No. 12-50255
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EPHRAIM DIAZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:05-CR-806-3


Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Ephraim Diaz challenges the 36-month prison sentence that he received
upon revocation of his supervised release. He contends that the district court
failed to offer sufficient explanation for the revocation sentence, which was above
the range recommended by the policy statements in the Sentencing Guidelines,
rendering it procedurally unreasonable. He also argues that the revocation
sentence was substantively unreasonable because, in his view, it was greater



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50255      Document: 00512098700       Page: 2    Date Filed: 01/02/2013

                                    No. 12-50255

than necessary to achieve the purposes of sentencing and did not account for his
acceptance of responsibility and that he had a job and was attending college.
      We generally review revocation sentences under the plainly unreasonable
standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir.), cert. denied, 132
S. Ct. 496 (2011). However, because Diaz did not object in the district court, our
review is for plain error only. See United States v. Whitelaw, 580 F.3d 256,
259-60 (5th Cir. 2009). To succeed under this standard, Diaz must show an error
that is clear or obvious and that affects his substantial rights, but even so, this
court generally will exercise its discretion to correct the error only if it “seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation marks
omitted). Diaz urges this court not to review his substantive reasonableness
argument under the plain error standard of review.                  Nonetheless, he
acknowledges that because he failed to object in the district court, his argument
is foreclosed in this circuit and explains that he raises it to preserve the issue for
future review.
      A district court must provide some explanation if it imposes a revocation
sentence that falls outside of the range recommended by the Guidelines’ policy
statements. Whitelaw, 580 F.3d at 261-62 (citing Rita v. United States, 551 U.S.
338, 356-57 (2007)). In its colloquy with Diaz, the district court noted that this
was the second time that Diaz failed to follow its instructions, referring to the
fact that Diaz had already had his supervised release revoked once. Diaz could
provide no explanation for his actions. The court also noted that it considered
the policy statements in the Guidelines but found them inadequate. Bearing in
mind that our review of revocation sentences is generally more deferential than
review of original sentences, Miller, 634 F.3d at 843, we conclude that the
district court’s explanation is sufficient for us to assess the court’s reasons and
the reasonableness of Diaz’s revocation sentence and thus that Diaz has not
shown clear or obvious error. See Whitelaw, 580 F.3d at 261-62. Moreover, the

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                                  No. 12-50255

district court’s statements imply that it considered the relevant sentencing
factors, and Diaz has not explained how a more thorough explanation would
have resulted in a shorter sentence, and there is no suggestion in the record that
the district court considered any improper factor or would impose a different
sentence on remand. Accordingly, Diaz has not shown that his substantial rights
were violated or that any error seriously affected the public reputation of the
proceedings. See id. at 262-65.
      As for substantive reasonableness, the revocation prison sentence of 36
months was considerably higher than the range of 4 to 10 months recommended
by the policy statements. Although the district court’s comments were brief, the
record reflects that the court heard and considered Diaz’s arguments that he
accepted responsibility for his supervised release violations, that he had a job,
and that he was attending college. However, the court determined that Diaz’s
conduct in failing on multiple occasions to abide by the terms of his supervision
were serious violations, meriting a significant punishment. See United States
v. Davis, 602 F.3d 643, 648 (5th Cir. 2010) (upholding a revocation sentence
above the range recommended in the Guidelines’ policy statements on the
grounds that the district court placed great weight on the seriousness of the
supervised release violation). That sentencing rationale is fully consistent with
the primary goal of a sentence upon revocation of supervised release, which is
to sanction the defendant for failing to abide by the terms of the supervision. See
U.S.S.G. Ch. 7, Pt. A, intro. comment. ¶ 3(b); Miller, 634 F.3d at 843. Moreover,
Diaz’s revocation sentence did not exceed the statutory maximum sentence;
accordingly, he has not shown that it is substantively unreasonable. See
Whitelaw, 580 F.3d at 265.
      AFFIRMED.




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