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United States v. Soliz ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
September 10, 2009
No. 08-40483
Summary Calendar                    Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERTO SOLIZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:02-CR-435-1
Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Roberto Soliz appeals the district court’s revocation of his supervised
release and the 24-month revocation sentence imposed by the district court.
Soliz argues that the evidence was insufficient to prove that he committed
indecency with a child by sexual contact in violation of T EXAS P ENAL C ODE A NN.
§ 21.11(a)(1). He further argues that the district court erred in classifying that
offense as a Grade A violation and therefore sentenced him pursuant to an
incorrectly calculated advisory range 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-40483
We review the district court’s decision to revoke supervised release for
abuse of discretion. United States v. Spraglin,
    418 F.3d 479
    , 480 (5th Cir. 2005).
A district court does not abuse its discretion in revoking a defendant’s
supervised release if a preponderance of the evidence satisfies the court that the
defendant has failed to comply with the conditions of supervised release. United
States v. McCormick,
    54 F.3d 214
    , 219 (5th Cir. 1995); see
    18 U.S.C. § 3583
    (e)(3).
The district court did not abuse its discretion. The revocation of Soliz’s
supervised release was plainly justified on the basis of the three charged
violations that Soliz did not contest. See § 3583(e)(3), (g); McCormick,
    54 F.3d at 
    219 n.3. Ordinarily, this court thus would not address the alleged errors
regarding the other violation.     See McCormick,
    54 F.3d at 
    219 n.3.        Soliz
nevertheless contends that this court should address his claim of error as to the
indecency offense because the district court’s finding that he committed that
violation influenced the sentence imposed.
In considering a challenge to the sufficiency of the evidence, this court
views the evidence and all reasonable inferences that may be drawn from the
evidence in a light most favorable to the Government.           United States v.
Alaniz-Alaniz,
    38 F.3d 788
    , 792 (5th Cir. 1994). Because of the conflicts between
the testimony of the victim and the witnesses, the district court made credibility
determinations in reaching its decision. This court affords great deference to a
district court’s credibility findings.
    Id. at 791
    . The district court did not abuse
its discretion in finding that Soliz had committed the indecency offense.
Soliz also argues that the Texas offense of indecency with a child by sexual
contact does not constitute a crime of violence under U.S.S.G. § 4B1.2(a).
Consequently, he argues, the offense is a Grade B violation of supervised release,
and his post-revocation sentencing range should have been 12 to 18 months of
imprisonment, not 24 months as determined by the district court. According to
Soliz, the sentencing disparity resulting from this alleged error requires that we
vacate his sentence and remand for resentencing.
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No. 08-40483
This court has not decided the appropriate standard of review for a
sentence imposed upon revocation of supervised release following United States
v. Booker,
    543 U.S. 220
     (2005), and we decline to do so now. See United States
v. McKinney,
    520 F.3d 425
    , 428 (5th Cir. 2008).          Because Soliz raises his
challenge to his sentence for the first time on appeal, our review is for plain
error. See United States v. Jones,
    484 F.3d 783
    , 792 (5th Cir. 2007). To establish
plain error, Soliz must show (1) a forfeited error, (2) that is clear or obvious, and
(3) that affects his substantial rights. See Puckett v. United States,
    129 S. Ct. 1423
    , 1429 (2009). Even if he establishes those factors, we will not exercise our
discretion to correct the forfeited error unless it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See
    id.
    Soliz has not demonstrated that his 24-month sentence is the result of any
plain error. Even if it is assumed that Soliz could establish the first two prongs
of plain error review (which we do not decide), he has not satisfied the third
prong, i.e., that any alleged error affected his substantial rights. Soliz does not
argue that a reasonable probability exists that he would have received a lesser
sentence absent the alleged error, see United States v. Garza-Lopez,
    410 F.3d 268
    , 275 (5th Cir. 2005), and the record is devoid of any such indication. The
district court was aware of the statutory maximum imprisonment term of 24
months. Moreover, because the 24-month sentence imposed did not exceed the
statutory maximum, it was not unreasonable. See § 3583(e)(3) (providing that
district court is authorized to impose any sentence that falls within the
appropriate statutory maximum term of imprisonment allowed for the
revocation sentence).
Accordingly, the district court’s judgment is AFFIRMED.
3