United States v. Rafael Pellot , 395 F. App'x 128 ( 2010 )

Case: 09-40988 Document: 00511232570 Page: 1 Date Filed: 09/14/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 14, 2010
No. 09-40988
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAFAEL ARCANGEL PELLOT,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-440-1
Before GARWOOD, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Rafael Arcangel Pellot appeals the district court’s revocation of his
supervised release. He 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
by failing to give reasons for its revocation of his supervised release.
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).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-40988
A district court may revoke a defendant’s supervised release if the court finds by
a preponderance of the evidence 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 in this case. 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 the testimony of the victim and Pellot conflicted with
the testimony of the other 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 Pellot had committed the indecency offense.
Pellot’s argument raised for the first time on appeal that the district court
failed to give reasons for its revocation of his supervised release is reviewed for
plain error.1 See United States v. Myers, 198 F.3d 160, 166 (5th Cir. 1999); see
also United States v. Magwood, 445 F.3d 826, 828 (5th Cir. 2006). To show plain
error, Pellot must establish a clear or obvious error that affected his substantial
rights. See Puckett v. United States, 129 S.Ct. 1423, 1429 (2009). Pellot,
however, does not attempt to show that any error by the district court affected
his substantial rights and has not satisfied the standard of plain error review.
Id.1
At the hearing on the motion to revoke the district court clearly and correctly noted
that the motion alleged “a law violation, indecency with a child by sexual conduct, in violation
of Texas Penal Code 21.11, on or about March 14, 2009, in Cameron County, Texas,” and
ascertained that pellot understood the allegation. There was no other violation alleged. At
the conclusion of the hearing the court stated to Pellot: “I do find that you did violate the terms
and conditions of your supervision, as alleged in the allegation,” and revoked his supervised
release and sentenced him to 30 months’ confinement followed by 30 months’ supervised
release. The written judgment of the same date recites that Pellot was found guilty of “Law
Violation – Indecency with a Child by Sexual Contact 03-14-09.”
2
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No. 09-40988
Accordingly, the district court’s judgment is AFFIRMED.
3