IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41496
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
REYNALDO GARCIA ARDILA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 97-41496
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October 23, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges:
PER CURIAM:*
Reynaldo Garcia Ardila (Ardila) was convicted of conspiracy to
possess with intent to distribute in excess of 100 kilograms of
marijuana and aiding and abetting to possess with intent to
distribute more than 100 kilograms of marijuana. 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 846. He was sentenced on March 29,
1989 to serve a 63-month term of imprisonment to be followed by a
five-year term of supervised release.
Ardila committed several violations of the terms of his
supervised release. As a result, the district court revoked the
*
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that this opinion should not be published and is not precedent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.
No. 97-41496
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supervised release, and remanded Ardila to the Bureau of Prisons
for a term of 60 months. At the hearing, Ardila did not object to
the sentence. When a defendant fails to object, this court reviews
for plain error. Fed. R. Crim. P. 52(b); United States v.
Claverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc). When
plain error is apparent, this court may raise the issue sua sponte.
United States v. Pineda-Ortuna, 952 F.2d 98, 105 (5th Cir. 1992).
On appeal Ardila argued that the 60-month sentence was plainly
unreasonable, because the district court did not adequately
consider the policy statement contained in Chapter 7 of the United
States Sentencing Guidelines. He also contended that the district
court’s reference to his drug addiction as the basis of sentencing
was unconstitutional. See Robinson v. California, 370 U.S. 660,
667 (1962).
We have reviewed the record and the briefs of the parties and
conclude that the district court did commit plain error, because it
imposed a sentence in violation of 18 U.S.C. § 3583(e)(3). When an
underlying conviction is for a class B felony, the maximum
allowable sentence upon revocation of supervised release is three
years. 18 U.S.C. § 3583(e)(3). The district court sentenced
Ardila to five years. Accordingly, the sentence should be vacated
and remanded to the district court for re-sentencing in conformity
with § 3583(e)(3). Ardila’s second contention, that referring to
his drug addiction in sentencing is unconstitutional, is without
merit. See United States v. Pena, 125 F.3d 285, 288 (5th Cir.
1997), cert. denied, 118 S. Ct. 1527 (1998)(the district court
sentenced defendant because he used controlled substances in
No. 97-41496
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violation of the terms of his probation, not because he was a drug
addict).
VACATED AND REMANDED.