Case: 11-50745 Document: 00511913192 Page: 1 Date Filed: 07/09/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 9, 2012
No. 11-50745
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAVIER MONTANEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:07-CR-147-1
Before SMITH, DeMOSS, and GRAVES, Circuit Judges.
PER CURIAM:*
Javier Montanez appeals his 20-month sentence imposed following the
district court’s revocation of his term of supervised release. He argues that his
above-guidelines sentence was plainly unreasonable because it reflected an
overstatement of the seriousness of his violations of the conditions of supervised
release and failed to take into account his personal circumstances. His further
assertion is that the district court should have considered the applicable policy
statements and the relevant factors under 18 U.S.C. § 3553(a) factors and should
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50745 Document: 00511913192 Page: 2 Date Filed: 07/09/2012
No. 11-50745
have imposed a guidelines sentence of 4-10 months, which would have satisfied
the goals of sentencing.
Montanez did not make an objection to the reasonableness of the sentence
after it was imposed. Thus, review of the substantive reasonableness of his
sentence is for plain error. See United States v. Whitelaw, 580 F.3d 256, 259 (5th
Cir. 2009). To show plain error, Montanez must show that the district court
committed a clear or obvious error that affects his substantial rights. Id. at 260.
If he makes that showing, the court will not exercise its discretion to correct the
error unless it will seriously affect the “fairness, integrity, or public reputation
of judicial proceedings.” Id.
The record reflects that the district court considered the policy statement
and the recommended sentencing guidelines range. Although the district court
did not expressly refer to § 3553(a)(1), it was clear that the court implicitly
considered the relevant factors in light of its knowledge of Montanez’s history
and characteristics, having presided over his first revocation proceeding, and its
consideration of the testimony and documents introduced during the revocation
hearing that reflected the nature and circumstances surrounding Montanez’s
present violations. Cf. Whitelaw, 580 F.3d at 262-65; United States v. Gonzalez,
250 F.3d 923, 930 (5th Cir. 2001). The district court also considered Montanez’s
allocution and the arguments of the parties, including defense counsel’s
assertions that the nature of Montanez’s violations did not warrant his
incarceration. Montanez’s appellate argument is essentially a request to have
this court reweigh the § 3553(a) factors, which this court will not do. See Gall
v. United States, 552 U.S. 38, 51 (2007). The sentence imposed falls within the
60-month statutory maximum, and the record reflects that the district court
considered the policy statements and the relevant § 3553 factors. Montanez has
not demonstrated any error, plain or otherwise, in the district court’s judgment.
See Whitelaw, 580 F.3d at 265. The judgment is AFFIRMED.
2