United States v. Marcos Flores-Gaytan , 542 F. App'x 353 ( 2013 )

Case: 12-41398 Document: 00512413719 Page: 1 Date Filed: 10/18/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 18, 2013
No. 12-41398
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCOS FLORES-GAYTAN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-1712-1
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
Marcos Flores-Gaytan (Flores) appeals his statutory-maximum 36-month
revocation sentence after he violated conditions of his supervised release
requiring that he not (1) unlawfully possess a controlled substance, (2) purchase,
possess, use, distribute, or administer any controlled substance except as
prescribed by a physician, (3) possess a firearm, or (4) commit another federal,
state, or local crime. His guidelines range was eight to 14 months of
imprisonment.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41398 Document: 00512413719 Page: 2 Date Filed: 10/18/2013
No. 12-41398
We review revocation sentences under the “plainly unreasonable”
standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). To satisfy
this standard, Flores must establish, inter alia, that the district court committed
an error that was “obvious under existing law.” Id. An error is obvious under
existing law if it would be considered clear or obvious error under the plain error
standard of review. Id. (citing United States v. Dunigan, 555 F.3d 501, 506 (5th
Cir. 2009)).
Even if he objected sufficiently to preserve his arguments that the district
court imposed a plainly unreasonable sentence, both procedurally and
substantively, by citing the need for punishment as a sentencing factor, the
arguments lack merit; because his supervised release was revoked pursuant to
both 18 U.S.C. § 3583(e) and (g), the district court was free to consider the 18
U.S.C. § 3553(a)(2)(A) factors. See United States v. Davis, --- F. App’x ---, No. 10-
11152, 2013 WL 3227275, at *2-*3 (5th Cir. May 17, 2013), petition for cert. filed
(Aug. 15, 2013) (No. 13-5905); United States v. Ellsworth, 490 F. App’x 663, 664
(5th Cir. 2012) (citing, inter alia, United States v. Larison, 432 F.3d 921, 923 n.3
(8th Cir. 2006)); United States v. Ibanez, 454 F. App’x 328, 329-30 (5th Cir.
2011), cert. denied, 132 S. Ct. 1981 (2012). Although we reviewed the revocation
sentences in Davis and Ibanez for plain error rather than under the plainly
unreasonable standard, we held in each case that a district court does not clearly
or obviously err by considering the § 3553(a)(2)(A) factors in imposing a sentence
pursuant to § 3583(g). See Davis, 2013 WL 3227275, at *3; Ibanez, 454 F. App’x
328, 329-30. Those holdings support our conclusion that Flores cannot show that
the district court committed an error that is obvious under existing law by
considering the § 3553(a)(2)(A) factors. See Miller, 634 F.3d at 843 (citing
Dunigan, 555 F.3d at 506).
Because he did not specifically raise it below, we review for plain error
Flores’s argument that the district court committed procedural error by failing
to explain his sentence adequately. See United States v. Mondragon-Santiago,
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No. 12-41398
564 F.3d 357, 361 (5th Cir. 2009). Since he does not attempt to show that the
district court clearly erred, that the alleged error affected his substantial rights,
or that the alleged error seriously affected the fairness, integrity, or public
reputation of the proceedings, he fails to show plain error. See Puckett v.
United States, 556 U.S. 129, 135 (2009); Mondragon-Santiago, 564 F.3d at 361.
AFFIRMED.
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