Case: 10-50138 Document: 00511298815 Page: 1 Date Filed: 11/18/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 18, 2010
No. 10-50138
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE SALDIVAR-SANCHEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:09-CR-668-1
Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Jose Saldivar-Sanchez (Saldivar) appeals the sentence of 24 months of
imprisonment and three years of supervised release imposed on revocation of the
term of supervised release that he was serving in connection with his conviction
for possession of cocaine. We affirm.
Saldivar maintains that his revocation sentence must be vacated as being
either unreasonable or plainly unreasonable. He contends that the sentence was
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50138
longer than necessary to satisfy the requirements of 18 U.S.C § 3553(a). Citing
§ 3553(a)(1), Saldivar contends that the district court failed to give adequate
consideration to the nature and circumstances of his supervised release
violations. More specifically, he suggests that the district court did not consider
the fact that the offense that served as one of his violations—illegal reentry into
the United States—itself drew a 57-month prison term on the same day that his
revocation sentence was imposed. He does not contend that the district court
failed to consider any other § 3553(a) factors or otherwise erred.
After United States v. Booker, 543 U.S. 220 (2005), it is unclear whether
the validity of a revocation sentence turns on whether it is held to be reasonable
or to be plainly unreasonable. See United States v. Davis, 602 F.3d 643, 647 n.5
(5th Cir. 2010). In Saldivar’s case, however, review is for plain error only, since
Saldivar did not present to the district court the objection that he now makes to
his sentence. See United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007). To
meet this standard of review, Saldivar must first show a forfeited error. See
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). He must then show that
the error is clear or obvious and that it affects his substantial rights. See id. If
Saldivar makes all of these showings, we have the discretion to correct the error
if the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See id.
On revocation of supervised release, a district court may impose any
sentence that falls within the statutory maximum term, but must consider the
Sentencing Guidelines’ policy statements, see U.S.S.G. Ch.7, Pt.B, and the
factors enumerated in § 3553(a) before it does so. Davis, 602 F.3d at 646.
Saldivar does not dispute that his sentence was below the statutory maximum
of three years imposable on the revocation of his supervised release. Instead, he
contends that his sentence deviated too far above the policy statements range of
four to ten months. We reject that contention. As we have previously observed,
we have routinely affirmed revocation sentences above the advisory policy range
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No. 10-50138
but within the statutory maximum. United States v. Whitelaw, 580 F.3d 256,
265 (5th Cir. 2009).
The district court was fully aware that it had also imposed a separate, 57-
month sentence in connection with Saldivar’s illegal reentry offense. The district
court expressed its concern about Saldivar’s “history of drugs” and convictions
for firearm offenses. Clearly, in the district court’s view the nature and
circumstances of the supervised release violation, which involved violent and
recidivist behavior, required a harsher sentence than was advised by the
guidelines policy statements. Saldivar has not shown that the district court
committed any error, much less error that is plain. See Jones, 484 F.3d at 792.
Because Saldivar has not satisfied even the first prong of plain error review, the
district court’s judgment must stand. See Puckett, 129 S. Ct. at 1429.
AFFIRMED.
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