IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40102
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON OMAR ALVARADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-98-194-01
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August 27, 1999
Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Ramon Omar Alvarado appeals as excessive the sentence
imposed by the district court upon the revocation of his terms of
probation and supervised release. He first contends that, in
determining his sentence, the district court failed to consider
adequately the factors set forth in 18 U.S.C. § 3553(a). He also
argues that the district court erroneously believed that it was
required to sentence him within the guideline range available at
*
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that this opinion should not be published and is not precedent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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the time of his initial sentencing. Lastly, he contends that his
sentence is plainly unreasonable.
Because there are no applicable guidelines for sentencing
after revocation of probation, see U.S.S.G. Ch. 7, Pt. A., 1,
this court will uphold Alvarado’s sentence unless it is in
violation of law or is plainly unreasonable. See United States
v. Teran, 98 F.3d 831, 836 (5th Cir. 1996).
Section 3553(a) directs the district court to consider
various factors when determining the appropriate sentence upon
revoking a defendant’s term of probation. These include, inter
alia, (1) the nature and circumstance of the offense, and the
history and characteristics of the defendant; (2) the need for
the sentence to reflect the seriousness of the crime; (3) the
kinds of sentences available; (4) the types of sentences and the
sentencing range established for the offense; and (5) the
applicable policy statements issued by the Sentencing Commission.
See Teran, 98 F.3d at 836.
The district court expressly considered each of the
preceding factors in determining Alvarado’s sentence. It weighed
the guideline range for the original offense, the applicable
policy statements, Alvarado’s storied history as a drug dealer,
and the need for a prolonged term of imprisonment to deter
Alvarado’s recidivist tendencies. Moreover, because the sentence
imposed was within the statutory range of punishment, it was not
plainly unreasonable. See United States v. Pena, 125 F.3d 285,
286 (5th Cir. 1997).
Alvarado’s argument that the district court erroneously
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believed itself constrained to the guideline range available at
the time of Alvarado’s original sentencing is frivolous. Even if
it is assumed that the district court believed itself to be so
limited upon resentencing, see Pena, 125 F.3d at 287 (after
revoking probation, district court is not limited to the “range
of sentences available at the time of the initial sentence”), he
has identified no injury resulting from this misconception.
Accordingly, his sentence is
AFFIRMED.