United States v. Rodriguez ( 2022 )

Case: 21-10850 Document: 00516370114 Page: 1 Date Filed: 06/24/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 24, 2022
No. 21-10850
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Johnny Roy Rodriguez, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-202-1
Before Barksdale, Willett, and Wilson, Circuit Judges.
Per Curiam:*
Johnny Roy Rodriguez, Jr. pleaded guilty to illegal receipt of a firearm
by a person under indictment, in violation of 18 U.S.C. §§ 922(n),
924(a)(1)(D). He was sentenced to, inter alia: 57 months’ imprisonment;
and three years’ supervised release. His probation officer later filed a petition
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10850 Document: 00516370114 Page: 2 Date Filed: 06/24/2022
No. 21-10850
seeking revocation of Rodriguez’ supervision, stating, inter alia, Rodriguez
had committed another crime. The recommended sentencing range was 15
to 21 months in prison; the statutory maximum, 24 months. The district
court: revoked supervised release; and imposed a sentence of 24 months’
imprisonment.
Rodriguez’ contention that his revocation sentence is substantively
unreasonable because the court varied upwardly from the recommended
range and did not explain the higher sentence is reviewed under the “plainly
unreasonable” standard provided in 18 U.S.C. § 3742(a) (review of
sentences). United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). Under
that standard, our court first considers whether the district court committed
“significant procedural error”. United States v. Warren, 720 F.3d 321, 326
(5th Cir. 2013). If there is none, the substantive reasonableness of a
revocation sentence is reviewed for abuse of discretion, “examining the
totality of the circumstances”. Id. at 326, 332.
At the revocation hearing, however, Rodriguez failed to: advocate for
a sentence shorter than the one imposed; or object to the sentence as
substantively unreasonable. Although unpreserved substantive-
reasonableness challenges are subject to plain-error review, Rodriguez
cannot prevail even under an abuse-of-discretion review. United States v.
Holguin-Hernandez, 955 F.3d 519, 520 n.1 (5th Cir. 2020) (noting some
challenges “[a]rguably . . . not preserved” but not reviewing for plain error
because “[defendant] would not prevail even under the less deferential abuse
of discretion standard”).
The court’s justification for the chosen revocation sentence was
reasoned, fact-specific, and consistent with the appropriate 18 U.S.C.
§ 3553(a) sentencing factors because, inter alia, the court: stated its selection
of sentence was based on the policy statements in Chapter 7 of the Sentencing
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No. 21-10850
Guidelines; listed the violations of release; and concluded 24 months’
imprisonment was necessary to address the violations and to deter additional
criminal activity. See Warren, 720 F.3d at 332–33.
AFFIRMED.
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