Case: 14-41391 Document: 00513306317 Page: 1 Date Filed: 12/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-41391
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 14, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
STEPHEN SANTOS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:06-CR-125-1
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Stephen Santos appeals the nine-month sentence imposed following the
revocation of his term of supervised release. Santos pleaded true to certain
violations of his conditions of supervised release, and following an evidentiary
hearing, the district court determined that he also violated his supervised
release on the violations he had contested.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41391
On appeal, Santos argues that his revocation sentence is unreasonable
because it is based on facts found by a judge by a preponderance of the evidence
and thus violates his due process rights under the Fifth Amendment and his
right to a jury trial under the Sixth Amendment. Santos acknowledges that
his arguments are foreclosed by United States v. Hinson, 429 F.3d 114, 118-19
(5th Cir. 2005), but he raises those issues to preserve them for further review.
Santos also contends that the district court erred in selecting a sentence
based on clearly erroneous facts pertaining to the contested violations, namely,
that (1) on May 24, 2011, he committed the crimes of aggravated robbery in
violation of Texas Penal Code § 29.03, carjacking in violation of 18 U.S.C.
§ 2119, and possession of a firearm by a felon in violation of 18 U.S.C.
§ 922(g)(1); and (2) on May 31, 2011, he committed the Texas crime of
aggravated robbery and the federal crime of firearm possession by a felon. A
district court may revoke a term of supervised release on a finding, by a
preponderance of the evidence, that a defendant violated a condition of
supervised release. See 18 U.S.C. § 3583(e)(3); Hinson, 429 F.3d at 118-19.
The revocation of Santos’s supervision was warranted on the bases of the
violations to which he pleaded true. See United States v. McCormick, 54 F.3d
214, 219 & n.3 (5th Cir. 1995). Ordinarily, our inquiry need go no further, see
id. at 219 n.3, but Santos urges that we should address his claim of error
regarding the other violations because the district court’s findings affected the
sentence.
Even if, arguendo, Santos’s sentence was influenced by the violations
that he contested, his claim that there was insufficient evidence to revoke his
supervised release on those grounds is unavailing. The evidence reflected that
the victim of the May 24 carjacking identified Santos as the person who pointed
a loaded shotgun at his head and proceeded to rob him of his vehicle and other
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No. 14-41391
belongings. Likewise, the victim of the May 31 carjacking (the offense to which
Santos pleaded guilty in a separate criminal proceeding) testified that Santos
used a shotgun to rob him of his vehicle, and the victim expressly denied that
the weapon was a BB gun. Accordingly, a preponderance of the evidence
supported a finding that Santos committed the challenged violations. See TEX.
PENAL CODE §§ 29.02(a)(2), 29.03(a)(2); § 922(g)(1); § 2119; see also Wright v.
State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979) (“Testimony using any of
the terms ‘gun’, ‘pistol’ or ‘revolver’ is sufficient to authorize the jury to find
that a deadly weapon was used.”). Therefore, the district court did not abuse
its discretion or err in revoking his supervision on those grounds and imposing
the revocation sentence. § 3583(e)(3); McCormick, 54 F.3d at 219.
Finally, Santos argues that he was denied the effective assistance of
counsel during the revocation proceeding because his counsel failed to assert
Fifth and Sixth Amendment objections. Because the record is not sufficiently
developed to allow for a fair consideration of this claim, we decline to consider
it on direct appeal without prejudice to any right Santos has to raise the claim
on collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir.),
cert. denied, 135 S. Ct. 123 (2014).
AFFIRMED.
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