IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 11, 2008
No. 07-20472
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROBERTO CANTU, also known as Robert Cantu
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-26-1
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Cantu appeals the 18-month sentence imposed upon revocation of his term
of supervised release. He argues that the sentence is procedurally unreasonable
because the district court relied on the contents of an undisclosed mental health
report in determining the sentence, in violation of his due process rights and his
rights under FED. R. CRIM. P. 32.1(b)(2)(B). He further argues that the sentence
is substantively unreasonable.
*
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should not be published and is not precedent except under the limited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.
No. 07-20472
Cantu did not properly preserve his argument regarding the use of the
mental health report below. See United States v. Hernandez-Martinez, 485 F.3d
270, 272 & n.1 (5th Cir.), cert. denied, 128 S. Ct. 325 (2007). Accordingly, we
review for plain error. Id. at 273. Cantu has not shown that his substantial
rights were affected by the district court’s reliance on the mental health report.
The sentencing transcript reveals that the district court intended to sentence
Cantu to a term of incarceration even before the court reviewed the report.
Nothing in the record indicates whether the length of Cantu’s sentence was
affected by the district court’s reliance on the report. Accordingly, there is no
plain error. See id.
The record reflects that the district court implicitly considered the
sentencing factors set forth at 18 U.S.C. § 3553(a). See United States v.
Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001). The district court determined that
an 18-month sentence was appropriate given Cantu’s need for intensive, in-
patient drug treatment. The sentence, although twice the advisory guidelines
range, is neither unreasonable nor plainly unreasonable. See United States v.
McKinney, ___ F.3d ___, 2008 WL 615447, *2 (5th Cir. Mar. 7, 2008).
Accordingly, the judgment is affirmed.
AFFIRMED.
2