United States v. Hidalgo-Peralta , 166 F. App'x 762 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS February 15, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50413
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GADIEL HIDALGO-PERALTA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:03-CR-2025-3-DB)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gadiel Hidalgo-Peralta appeals the 12-month sentence imposed
following revocation of his supervised release at sentencing,
following Hidalgo and his brother’s being convicted of several drug
offenses. Hidalgo contends that the revocation sentence should
have run concurrently to the mandatory-minimum 120-month sentence
he received for the drug offenses.
*
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this opinion should not be published and is not precedent except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.
A district court has the authority to run terms of
imprisonment consecutively upon revocation of supervised release.
United States v. Gonzalez, 250 F.3d 923, 925-29 (5th Cir. 2001).
“After finding that a defendant has violated a condition of
supervised release, the district court must consider the factors
contained in 18 U.S.C. § 3553(a) in determining the sentence to be
imposed.” Id. at 929. These factors must be considered “in
determining whether the terms imposed are to be ordered to run
concurrently or consecutively”. 18 U.S.C. § 3584(b) (2000).
“‘Implicit consideration of the § 3553 factors is sufficient.’”
Gonzalez, 250 F.3d at 930 (quoting United States v. Teran, 98 F.3d
831, 836 (5th Cir. 1996)).
Hidalgo suggests that we apply a plain error standard of
review. Of course, we, not the parties, determine the proper
standard of review. E.g., St. Tammany Parish Sch. Bd. v.
Louisiana, 142 F.3d 776, 782 (5th Cir.), cert. dismissed, 525 U.S.
1036 (1998). In any event, Hidalgo appears at sentencing to have
preserved this issue by requesting a concurrent sentence. Pre-
United States v. Booker, 125 S. Ct. 738 (2005), we would have
upheld Hidalgo’s sentence “unless it [was] in violation of law or
[was] plainly unreasonable”. United States v. Stiefel, 207 F.3d
256, 259 (5th Cir. 2000) (internal citation and quotation marks
omitted). Post-Booker, it is unclear whether the same standard
applies or if we instead review a revocation sentence only for
“unreasonableness”. United States v. Hinson, 429 F.3d 114, 120
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(5th Cir. 2005). Similar to Hinson, we need not decide that issue
because Hidalgo’s sentence is proper under either standard. Id.Hidalgo asserts that the district court had decided to impose
a concurrent sentence, but concluded otherwise after it became
upset with the attorney representing Hidalgo’s brother at
sentencing. Hidalgo contends that the district court’s imposition
of a consecutive sentence was based on an impermissible factor.
We do not agree. The district court never made any prior
statements suggesting that Hidalgo’s sentences would be concurrent.
It determined that a consecutive sentence should be imposed, after
Hidalgo admitted to committing drug offenses and after taking
judicial notice of Hidalgo’s brother’s convictions. The district
court is to consider “the nature and circumstances of the offense
and the history and characteristics of the defendant” in
determining his sentence. 18 U.S.C. § 3553(a)(1) (2000).
AFFIRMED
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