IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10260
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOUIS FRANCO LERMA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(1:99-CR-62-1)
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August 20, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Louis Franco Lerma appeals his 15-month
sentence following the revocation of his supervised-release term.
Lerma contends that the sentence imposed in connection with his
revocation is plainly unreasonable because (1) it is largely based
on his state court conviction for family violence assault, and (2)
that conviction was subsequently set aside by the granting of his
motion for new trial. Lerma asserts that the district court also
committed reversible error at sentencing by failing to consider the
applicable sentencing guidelines and policy statements in
*
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that this opinion should not be published and is not precedent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.
determining his sentence which, he insists, was the product of an
upward departure from the guidelines.
We will uphold the results of a sentencing following the
revocation of supervised release “unless it is in violation of law
or is plainly unreasonable.” See United States v. Mathena, 23 F.3d
87, 89 (5th Cir. 1994). In determining whether a sentence is
plainly unreasonable or is in violation of law, we review the
district court’s interpretation of sentencing statutes de novo.
Id.
The fact that Lerma’s state conviction for family violence
assault was set aside does not automatically invalidate the
revocation of Lerma’s supervised release. After receiving evidence
at the revocation hearing regarding, inter alia, facts about
Lerma’s assault on his 15-year-old daughter, the district court
found by a preponderance of the evidence that Lerma had violated
his supervised release. Lerma fails to accept the distinction
between a revocation of supervised release based on a conviction -
qua conviction and a revocation based on the facts underlying a
conviction. We conclude, irrespective of the state’s subsequent
setting aside of Lerma’s conviction, that the district court had
before it a preponderance of the evidence needed to support its
finding of a violation of the terms of his supervised release.
United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996).
In sentencing a defendant following the revocation of his
supervised release, a district court is required to consider, but
is not bound by, the policy statements contained in Chapter 7 of
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the Sentencing Guidelines. See Mathena, 23 F.3d at 93. The record
supports the implication that the district court considered, yet
rejected, the five-to-eleven month imprisonment range suggested by
the policy statements.
Lerma’s argument that his sentence represents an upward
departure from the Guidelines fails. A sentence that diverges from
advisory policy statements is not a departure. Mathena, 23 F.3d at
94 n.13. In light of the number and nature of the release terms
violated by Lerma (missing several counseling sessions and drug
screenings and assaulting his daughter), the district court
obviously found the need to impose a sentence that would serve as
a deterrent to further noncompliant and assaultive behavior by
Lerma and as punishment for his actions as well. The district
court was within its discretion in considering such factors, so the
sentence cannot be said to be plainly unreasonable. See 18 U.S.C.
§§ 3583(e), § 3552(a).
In sum, the district court did not err in sentencing Lerma to
15 months’ imprisonment following the revocation of his supervised
release. The judgment of the district court is, therefore,
AFFIRMED.
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