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United States v. John Stern ( 2019 )


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  •      Case: 19-10241      Document: 00515247174        Page: 1     Date Filed: 12/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-10241                             FILED
Summary Calendar                   December 23, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN STERN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:16-CR-8-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
John Stern violated the terms of his supervised release by repeatedly
testing positive for drugs. The district court revoked his supervised release
and imposed a 12-month revocation sentence. Stern argues that sentence is
procedurally and substantively unreasonable.
Because Stern did not raise these arguments in the district court, our
review is for plain error. See United States v. Whitelaw,
    580 F.3d 256
    , 259–60
*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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10241     Document: 00515247174     Page: 2   Date Filed: 12/23/2019
No. 19-10241
(5th Cir. 2009); United States v. Neal,
    578 F.3d 270
    , 272 (5th Cir. 2009); United
States v. Peltier,
    505 F.3d 389
    , 391–92 (5th Cir. 2007). Stern urges us to apply
the “plainly unreasonable” standard to review his sentence. See United States
v. Miller,
    634 F.3d 841
    , 843 (5th Cir. 2011). And the Supreme Court has
granted certiorari to determine whether plain-error review applies to
substantive-unreasonableness claims.        See Holguin-Hernandez v. United
States,
    139 S. Ct. 2666
     (2019) (mem.). For the reasons below, we would affirm
under any standard.
First, Stern challenges the procedural reasonableness of his sentence
because the district court did not explicitly consider all the applicable factors
under
    18 U.S.C. § 3553
    (a) factors and the exception to revocation under
§ 3582(d). However, implicit consideration of the § 3553(a) factors is sufficient.
See United States v. Brooker,
    858 F.3d 983
    , 987 (5th Cir. 2017). The district
court heard Stern’s mitigation arguments, was aware of the guidelines range,
and cited two sentencing factors. This record indicates that the district court
implicitly considered the § 3553(a) factors, and because Stern challenges his
sentence and not his revocation, he has not shown that the district court erred
by failing to explicitly consider the § 3583(d) exception. See United States v.
Peltier,
    505 F.3d 389
    , 390, 392 (5th Cir. 2007); Brooker, 858 F.3d at 985–87.
Stern also argues that the sentence was procedurally unreasonable
because the district court did not sufficiently explain the reasoning behind its
above-guidelines sentence.     But the court identified deterrence and the
protection of the public as the reasons for its sentence.         And we have
“repeatedly affirmed above-range revocation sentences where the district
court, without any additional explanation, explicitly identified deterrence and
protection of the public as the reasons for imposing the sentence.” United
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Case: 19-10241    Document: 00515247174      Page: 3   Date Filed: 12/23/2019
No. 19-10241
States v. Salinas, 684 F. App’x 408, 410 (5th Cir. 2017) (per curiam). We do so
again today.
Stern also argues that his sentence was substantively unreasonable. But
contrary to Stern’s argument, overcrowding in federal facilities does not render
his sentence substantively unreasonable.       See § 3553(a); United States v.
Bearden, 738 F. App’x 828, 829 (5th Cir. 2018) (noting that “overcrowding in
federal facilities do[es] not render [a] sentence substantively unreasonable”).
Also unavailing are his arguments that the district court gave too much weight
to the § 3553(a) factors of deterrence and protection of the public, gave no
weight to the guidelines range or the other § 3553(a) factors, and failed to
justify the sentence. The 12-month revocation sentence is above the maximum
advisory guidelines sentence of 9 months, but it is well below the statutory
maximum sentence of 24 months.             And we have routinely upheld the
substantive reasonableness of similar sentences. See United States v. Warren,
    720 F.3d 321
    , 332 (5th Cir. 2013). This case does not warrant a different result,
especially given the deference owed to the district court’s consideration of the
§ 3553(a) factors. See Gall v. United States,
    552 U.S. 38
    , 51–52 (2007).
The judgment of the district court is AFFIRMED.
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