Case: 16-40192 Document: 00513719934 Page: 1 Date Filed: 10/17/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-40192
Fifth Circuit
FILED
Summary Calendar October 17, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
EFRAIN BALDIVIA, III,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:14-CR-31-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Efrain Baldivia, III, appeals the 24-month sentence imposed after
revocation of the supervised release term attendant to his conviction for
possession with intent to distribute controlled substances. He argues for the
first time that the district court impermissibly based the above-guidelines
sentence on the seriousness of the offense and the need to provide just
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-40192 Document: 00513719934 Page: 2 Date Filed: 10/17/2016
No. 16-40192
punishment in violation of United States v. Miller, 634 F.3d 841 (5th Cir. 2011).
See 18 U.S.C § 3553(a)(2)(A).
Because in the district court Baldivia did not object to the sentence,
review is for plain error only. See United States v. Whitelaw, 580 F.3d 256,
259-60 (5th Cir. 2009). Under the plain error standard, Baldivia must show a
plain (clear or obvious) forfeited error that affected his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the
discretion to correct the error, but should do so only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. Id.
Baldivia, however, has not met this standard as the district court’s
revocation sentence was permissibly based on the “nature” of the allegations
of the supervised release violations that it found to be true, not on the
“seriousness” of those alleged offenses. See § 3553(a)(1); Miller, 634 F.3d at
844. The non-guidelines sentence does not rise to the level of plain error given
Baldivia’s history and characteristics, the need to deter future criminal
conduct, and the need to protect the public. See § 3553(a)(1), (a)(2)(B)-(C);
Miller, 634 F.3d at 844 .
AFFIRMED.
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