Case: 16-40521 Document: 00513893903 Page: 1 Date Filed: 03/02/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-40521
Fifth Circuit
FILED
Summary Calendar March 2, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
FABIAN FLORES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-26-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Fabian Flores has appealed the sentence received following the
revocation of his supervised release term. The district court imposed a
statutory maximum 24-month term of imprisonment, to be followed by an
additional two-year term of supervised release. On appeal, Flores asserts that
the sentence is procedurally unreasonable because the district court
improperly considered factors listed in 18 U.S.C. § 3553(a)(2)(A).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-40521
Alternatively, he maintains that the district court’s consideration of those
factors rendered his sentence substantively unreasonable. Finally, Flores
contends that the extension of supervised release exceeded the statutory
maximum under 18 U.S.C. § 3583(h).
Ordinarily, we review revocation sentences under a plainly unreasonable
standard. United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013). Because
no objection was made at the revocation hearing to the district court’s
consideration of improper factors, however, we review Flores’s challenge to the
procedural unreasonableness of his sentence for plain error. See United States
v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To show plain error, Flores
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes such a showing, this court has the discretion to correct the error but will
do so only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
Because § 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), a district court may not rely on
these factors in its imposition of a revocation sentence. United States v. Miller,
634 F.3d 841, 844 (5th Cir. 2011). To the extent that the district court
considered the seriousness of the assault giving rise to Flores’s revocation
proceedings or the need for just punishment for that violation, these were not
the dominant factors in the court’s sentencing decision; rather, the dominant
factors in determining the length of the sentence were the district court’s
consideration of other, permissible factors. See § 3553(a)(1), (2)(B), (2)(C);
United States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015).
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A revocation sentence is substantively unreasonable if the district court
did not take into account a factor that should have received significant weight,
gave significant weight to an irrelevant or improper factor, or made a clear
error in judgment when balancing the sentencing factors. Warren, 720 F.3d at
332. Flores has not shown that the court gave significant weight to the
improper factors of the seriousness of the violation or the need for just
punishment. See id. His 24-month sentence, which does not exceed the
statutory maximum, is substantively reasonable. See id. at 326, 332;
Whitelaw, 580 F.3d at 259, 265.
We review de novo Flores’s argument that the supervised release portion
of his revocation sentence exceeds the statutory maximum. See United States
v. Vera, 542 F.3d 457, 459 (5th Cir. 2008). When a defendant’s supervised
release is revoked and the district court sentences the defendant to a term of
imprisonment followed by a term of supervised release, the term of supervised
release “shall not exceed the term of supervised release authorized by statute
for the offense that resulted in the original term of supervised release, less
than any term of imprisonment that was imposed upon revocation of
supervised release.” § 3583(h). The Government agrees that a sentencing
court must aggregate the imprisonment term with the supervised release term;
however, it challenges Flores’s contention that the maximum term of
supervised release available for the aggregate term was three years. The
Government’s argument has merit. In United States v. Jackson, 559 F.3d 368,
370, 372 (5th Cir. 2009), this court held that following the amendment of 21
U.S.C. § 841(b)(1)(C) in 2002, the “general maximums of § 3583(b) do not apply
to revocation sentencing when the original offense was a conviction under
§ 841(b)(1)(C).” Flores concedes that his argument is foreclosed by Jackson.
Accordingly, the judgment of the district court is AFFIRMED.
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