United States v. Hernandez ( 2023 )

Case: 22-50752 Document: 00516815366 Page: 1 Date Filed: 07/10/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50752
Summary Calendar FILED
____________ July 10, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Eric Hernandez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:16-CR-197-1
______________________________
Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam: *
Eric Hernandez appeals the 24-month sentence imposed upon
revocation of his supervised release. He argues that his due process rights
were violated when the district court revoked his supervised release and
based his revocation sentence on abandoned, unproved allegations in the
petitions to revoke.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50752
Inasmuch as Hernandez contends that the revocation of his
supervised release was error, the argument is meritless. As Hernandez
concedes, he pleaded true to the charged supervised release violation based
on his new felon-in-possession offense. The district court thus did not abuse
its discretion in revoking his release. See United States v. Spraglin, 418 F.3d
479, 480 (5th Cir. 2005); 18 U.S.C. § 3583(e)(3). To the extent that
Hernandez contends that the district court violated his due process rights by
varying upwardly from the guidelines range to impose the statutory
maximum sentence without full disclosure of the evidence against him and
the opportunity to cross-examine adverse witnesses, the argument is
unavailing as his challenge to his sentence does not implicate any due process
concerns. See United States v. Williams, 847 F.3d 251, 254 (5th Cir. 2017).
Hernandez argues that the revocation sentence is substantively
unreasonable, urging that the district court erroneously varied upwardly to
the statutory maximum sentence based on impermissible factors, the charged
supervised release violations which the Government abandoned at
revocation. The record demonstrates that the district court explicitly
considered the advisory guidelines range but balanced that against the nature
and circumstances of Hernandez’s supervised release violation and his
history and characteristics and found that the guidelines range was
inappropriate. The district court ultimately concluded that the 24-month,
above-guidelines sentence was necessary to provide adequate deterrence and
to protect the public from future crimes—factors that were appropriate for
the district court to consider in imposing the revocation sentence and which
this court will not reweigh. See Gall v. United States, 552 U.S. 38, 51 (2007);
§ 3583(e); 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C). Hernandez’s
assertion to the contrary notwithstanding, the court never referenced an
impermissible factor. See § 3553(a)(2)(A); cf. United States v. Miller, 634 F.3d
841, 842, 844 (5th Cir. 2011). Moreover, the extent of the upward variance,
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No. 22-50752
from a range of four to 10 months to a sentence of 24 months, does not
constitute an abuse of discretion as this court has routinely upheld larger
variances, even where the sentence is the statutory maximum. See, e.g.,
United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013); United States v.
Kippers, 685 F.3d 491, 500-01 (5th Cir. 2012); United States v. Whitelaw, 580
F.3d 256, 265 (5th Cir. 2009).
Hernandez has not shown that his revocation sentence is plainly
unreasonable. See Warren, 720 F.3d at 326, 332; Miller, 634 F.3d at 843.
Accordingly, the district court’s judgment is AFFIRMED.
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