Case: 21-50312 Document: 00516191328 Page: 1 Date Filed: 02/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 3, 2022
No. 21-50312
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Salvador Varela-Gonzalez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-491-1
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam:*
Salvador Varela-Gonzalez was sentenced to a within-Sentencing-
Guidelines term of 12 months’ imprisonment, imposed upon the revocation
of his supervised release. He contends his revocation sentence is
substantively unreasonable because the district court did not account for, or
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-50312
give sufficient weight to, his sister’s testimony concerning his kidnapping
and his father’s illness. (We need not consider whether Varela preserved his
substantive-reasonableness challenge in district court because it fails even
under the following, more lenient plainly-unreasonable standard of review,
as opposed to plain-error review. See United States v. Rodriguez, 602 F.3d
346, 361 (5th Cir. 2010) (declining to decide standard of review and applying
more lenient standard).)
As reflected above, a preserved challenge to a revocation sentence is
reviewed under the plainly-unreasonable standard’s two-pronged inquiry.
United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011) (holding Booker did
not abrogate plainly-unreasonable review for revocation sentences); United
States v. Warren, 720 F.3d 321, 326, 333 (5th Cir. 2013) (declining to reverse
revocation sentence). Our court first considers whether the court
procedurally erred by, inter alia, failing to consider the 18 U.S.C. § 3553
sentencing factors. Warren, 720 F.3d at 326. If no such procedural error
exists, substantive reasonableness is reviewed under an abuse-of-discretion
standard. Miller, 634 F.3d at 843.
If the sentence is unreasonable, reversal is proper only if “the error
was obvious under existing law”. Id. A presumption of reasonableness
applies to within-Guidelines revocation sentences. United States v. Lopez-
Velasquez, 526 F.3d 804, 808–09 (5th Cir. 2008) (per curiam) (concluding
defendant failed to rebut presumption).
The record belies Varela’s assertion that the court failed to account
for his sister’s testimony. Moreover, Varela’s contention that the court did
not give significant weight to the testimony amounts to disagreement with
the court’s balancing of the sentencing factors and, accordingly, is not
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No. 21-50312
sufficient to demonstrate his revocation sentence is plainly unreasonable.
Warren, 720 F.3d at 332.
AFFIRMED.
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