Case: 12-50311 Document: 00512184217 Page: 1 Date Filed: 03/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 22, 2013
No. 12-50311
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VERONICA ZAMARRIPA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-1979-1
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Veronica Zamarripa has appealed the above-guidelines sentence imposed
upon revocation of her supervised release because she had committed a state law
violation, that is, assault causing bodily injury. She contends that the sentence
was plainly unreasonable. Because no objection was made at the revocation
hearing, this court’s review of the revocation sentence is limited to plain error.
See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To show
plain error, Zamarripa must show a forfeited error that is clear or obvious 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-50311 Document: 00512184217 Page: 2 Date Filed: 03/22/2013
No. 12-50311
that affects her substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If she makes such a showing, this court has the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.
The district court may impose any sentence that falls within the statutory
maximum term of imprisonment allowed for the revocation sentence. U.S.S.
§ 3583(e)(3). However, the court is directed to consider the factors enumerated
in § 3553(a), including the nonbinding policy statements found in Chapter Seven
of the Sentencing Guidelines. United States v. Mathena, 23 F.3d 87, 90-93 (5th
Cir. 1994). Section 3583(e) omits from its directive the sentencing factors listed
in § 3553(a)(2)(A), which include the need for the sentence “to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.” § 3553(a)(2)(A). In United States v. Miller, 634
F.3d 841, 844 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011), this court held that
this deliberate omission by Congress means “that it is improper for a district
court to rely on § 3553(a)(2)(A) for the modification or revocation of supervised
release term.” Zamarripa contends that the district court committed Miller
error.
It was not improper, under Miller, for the district court to consider the
need to punish Zamarripa for violating the conditions of her supervised release
by committing another law violation. See Miller, 634 F.3d at 843. The court
considered properly the nature and circumstances of the original offense, the
history and characteristics of the defendant, and the need for the sentence to
deter future criminal conduct and protect the public. See § 3553(a)(1), (2)(B) &
(C). The record does not reflect that the district court intended improperly that
the sentence reflect the seriousness of or impose just punishment for the original
offense. See Miller, 634 F.3d at 844. Instead, the court properly considered the
kinds of sentences available and the sentencing guidelines. See § 3553(3) & (4).
No error has been shown, plain or otherwise. See Puckett, 556 U.S. at 135.
AFFIRMED.
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