United States v. Duran , 228 F. App'x 446 ( 2007 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  April 20, 2007
    Charles R. Fulbruge III
    Clerk
    No. 06-10815
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RAMON RESENDEZ DURAN, JR.,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 6:92-CR-37-8
    --------------------
    Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    Ramon Resendez Duran, Jr., appeals the sentence imposed
    following the revocation of his supervised release.     He contends
    that sentences, including those imposed upon revocation of
    supervised release, should be reviewed under the reasonableness
    standard enunciated in United States v. Booker, 543 U.S. (2005).
    Further, he argues that his sentence was unreasonable because the
    court did not adequately apply the 18 U.S.C. § 3553(a) factors
    and, particularly, failed to consider Duran’s possession of
    methadone in the context of his treatment for heroin addiction.
    *
    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    this opinion should not be published and is not precedent except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. 06-10815
    -2-
    The Government has moved for dismissal of the appeal or for
    summary affirmance on the ground that this court lacks
    jurisdiction to consider Duran’s appeal under 18 U.S.C.
    § 3742(a)(4).   Because Duran cannot prevail on the merits of his
    appeal, we pretermit consideration of the jurisdictional issue.
    See United States v. Weathersby, 
    958 F.2d 65
    , 66 (5th Cir. 1992).
    The Government’s motion for dismissal of the appeal or for
    summary affirmance is therefore denied.    The Government’s
    alternative request for an extension of time to file an appellate
    brief is also denied as unnecessary.
    This court need not decide the appropriate standard of
    review for a sentence imposed upon revocation of supervised
    release in the wake of United States v. Booker, 
    543 U.S. 220
    (2005), because Duran has not shown that his sentence was either
    unreasonable or plainly unreasonable.     See United States v.
    Hinson, 
    429 F.3d 114
    , 120 (5th Cir. 2005), cert. denied,
    
    126 S. Ct. 1804
    (2006).   Duran was subject to a five-year
    statutory maximum sentence upon revocation of his supervised
    release on Count One and to a two-year statutory maximum sentence
    upon revocation of his supervised release on Count Two.       See 18
    §§ 3583(e)(3); 3559(a)(1),(4); 21 U.S.C. §§ 841(b)(1)(B)(i), 846.
    The Sentencing Guidelines recommended a prison term of between 12
    to 18 months based on Duran’s Grade B violations and his criminal
    history category of IV.   See U.S.S.G. § 7B1.4(a).   Therefore, the
    consecutive 18-month terms of imprisonment on each count were
    No. 06-10815
    -3-
    within the recommended range and neither unreasonable nor plainly
    unreasonable.   See 
    Hinson, 429 F.3d at 120
    ; United States v.
    Gonzalez, 
    250 F.3d 923
    , 925-29 (5th Cir. 2001).
    AFFIRMED; MOTION FOR DISMISSAL OR SUMMARY AFFIRMANCE DENIED;
    ALTERNATIVE REQUEST FOR EXTENSION OF TIME DENIED AS UNNECESSARY
    

Document Info

Docket Number: 06-10815

Citation Numbers: 228 F. App'x 446

Judges: Barksdale, Benavides, Davis, Per Curiam

Filed Date: 4/20/2007

Precedential Status: Non-Precedential

Modified Date: 8/2/2023