United States v. Ortega , 247 F. App'x 568 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-11116
Summary Calendar September 17, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
NOAH ORTEGA
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 5:03-CR-10-ALL
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Noah Ortega appeals the 20-month sentence imposed following the
revocation of his supervised release term. Ortega contends that pursuant to
United States v. Booker, 543 U.S. 220 (2005), and United States v. Mares, 402
F.3d 511, 519 (5th Cir. 2005), sentences, including those imposed upon
revocation of supervised release, are reviewed under the reasonableness
standard. Ortega argues that the sentence imposed was unreasonable because
*
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should not be published and is not precedent except under the limited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. 06-11116
it exceeded the recommended range and the district court’s reasons for imposing
the sentence were insufficient.
The Government has moved for dismissal of the appeal or for summary
affirmance on the ground that this court lacks jurisdiction to consider Ortega’s
appeal under 18 U.S.C. § 3742(a)(4) and 28 U.S.C. § 1291. Because Ortega
cannot prevail on the merits of his appeal, we pretermit consideration of the
jurisdictional issue. See United States v. Weathersby, 958 F.2d 65, 66 (5th Cir.
1992). The Government’s motion for dismissal of the appeal or for summary
affirmance is therefore DENIED. The Government’s alternative request for an
extension of time to file an appeal brief is DENIED AS UNNECESSARY.
Ortega has not shown that his sentence was either unreasonable or plainly
unreasonable. Ortega did not object to any fact findings at his revocation
hearing, nor did he object to the reasonableness of his 20-month sentence. His
contentions are reviewed for plain error. See United States v. Jones, 484 F.3d
783, 792 (5th Cir. 2007). “Questions of fact capable of resolution by the district
court upon proper objection at sentencing can never constitute plain error.”
United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Ortega therefore cannot
demonstrate reversible plain error as to the fact findings of the district court.
This court has not required district courts to state specific reasons for departing
from advisory guideline ranges when imposing terms of imprisonment on
revocation of supervised release. Ortega therefore cannot demonstrate
reversible plain error regarding the reasonableness of his 20-month sentence.
See Jones, 484 F.3d at 792. The district court’s judgment is AFFIRMED.
2