United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 1, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-51105
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO ESQUIVEL, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CR-377-ALL
Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Antonio Esquivel, Jr. has appealed the thirty-six-month term
of imprisonment imposed by the district court upon revocation of
Esquivel’s supervised release. We will uphold the sentence “unless
it is in violation of law or is plainly unreasonable.” United
States v. Stiefel, 207 F.3d 256, 259 (5th Cir. 2000) (citation and
*
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opinion should not be published and is not precedent except under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.
internal quotation marks omitted). We review the district court’s
factual findings for clear error. See United States v. Alaniz-
Alaniz, 38 F.3d 788, 790 (5th Cir. 1994).
Esquivel contends that the sentence was unreasonably severe
and that the district court did not state that it had considered
the factors in 18 U.S.C. § 3553 before sentencing him. Esquivel’s
original conviction was a Class A felony. See 21 U.S.C. §§
841(a)(1), 841(b)(1)(A) (1995); 18 U.S.C. § 3559(a)(1). The
district court may impose a term of imprisonment of not more than
five years upon revocation of supervised release from a Class A
felony. 18 U.S.C. § 3583(e)(3). The thirty-six-month term of
imprisonment did not exceed the statutory maximum.
In arguing that the sentence was plainly unreasonable,
Esquivel contends that the district court erred in finding that he
had violated a condition of his supervised release by committing a
law violation-theft. The theft was one of four violations found by
the district court. Even if we were to conclude that the district
court erred in finding that Esquivel had committed the theft, we
would not necessarily conclude also that the sentence for the other
three violations was plainly unreasonable. In any event, the
district court’s finding that Esquivel had committed the theft was
not clearly erroneous. See Alaniz-Alaniz, 38 F.3d at 790. Because
the statutory maximum was two years longer than the sentence
imposed and because the district court arguably could have imposed
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a more severe sentence, the sentence cannot be considered plainly
unreasonable.
We review Esquivel’s contention that the district court failed
to consider the factors in 18 U.S.C. § 3553(a) only for plain error
because Esquivel did not raise any objection in this respect in the
district court. See United States v. Everist, ___ F.3d ___, slip
op. 2164 (No. 03-20059, 5th Cir. April 27, 2004); United States v.
Londono, 285 F.3d 348, 355 (5th Cir. 2002); United States v.
Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001); United States v.
Izaquirre-Losoya, 219 F.3d 437, 441 (5th Cir. 2000). Implicit
consideration of the section 3553(a) factors suffices. Gonzalez at
929-30. It can be inferred from the district court’s comments at
the revocation hearing that the district court considered most of
the factors listed in section 3553(a) in determining the sentence.
The record also reflects that the district court was aware of the
applicable five to eleven month confinement period reflected in the
policy statements contained in Chapter 7 of the United States
Sentencing Commission Guidelines Manual. See U.S.S.G. §§ 7B1.1(a),
7B1.4. See also 18 U.S.C. §§ 3553(a)(4)(B), (5), and 3583(e).1 We
note also that the policy statements are advisory only and the
district court is not bound to follow them. United States v.
1
And, appellant does not question the five to eleven month
period, but rather relies on it, and points out that it is
applicable to a Grade C violation and Criminal History Category of
III.
3
Mathena, 23 F.3d 87, 93 (5th Cir. 1994). Even if the district
court erred and the error was plain, reversal would not be called
for under clear error review because the sentence imposed did not
exceed the statutory maximum, prejudice to Esquivel’s substantial
rights is highly doubtful and it is plain that if there were error
it did not seriously affect the fairness, integrity or public
reputation of judicial proceedings. Gonzalez at 930 n.10. The
district court’s order is
AFFIRMED.
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