United States v. Duran , 228 F. App'x 446 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2007
Charles R. Fulbruge III
Clerk
No. 06-10815
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON RESENDEZ DURAN, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:92-CR-37-8
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Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ramon Resendez Duran, Jr., appeals the sentence imposed
following the revocation of his supervised release. He contends
that sentences, including those imposed upon revocation of
supervised release, should be reviewed under the reasonableness
standard enunciated in United States v. Booker, 543 U.S. (2005).
Further, he argues that his sentence was unreasonable because the
court did not adequately apply the 18 U.S.C. § 3553(a) factors
and, particularly, failed to consider Duran’s possession of
methadone in the context of his treatment for heroin addiction.
*
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this opinion should not be published and is not precedent except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. 06-10815
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The Government has moved for dismissal of the appeal or for
summary affirmance on the ground that this court lacks
jurisdiction to consider Duran’s appeal under 18 U.S.C.
§ 3742(a)(4). Because Duran 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 appellate
brief is also denied as unnecessary.
This court need not decide the appropriate standard of
review for a sentence imposed upon revocation of supervised
release in the wake of United States v. Booker, 543 U.S. 220
(2005), because Duran has not shown that his sentence was either
unreasonable or plainly unreasonable. See United States v.
Hinson, 429 F.3d 114, 120 (5th Cir. 2005), cert. denied,
126 S. Ct. 1804 (2006). Duran was subject to a five-year
statutory maximum sentence upon revocation of his supervised
release on Count One and to a two-year statutory maximum sentence
upon revocation of his supervised release on Count Two. See 18
§§ 3583(e)(3); 3559(a)(1),(4); 21 U.S.C. §§ 841(b)(1)(B)(i), 846.
The Sentencing Guidelines recommended a prison term of between 12
to 18 months based on Duran’s Grade B violations and his criminal
history category of IV. See U.S.S.G. § 7B1.4(a). Therefore, the
consecutive 18-month terms of imprisonment on each count were
No. 06-10815
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within the recommended range and neither unreasonable nor plainly
unreasonable. See Hinson, 429 F.3d at 120; United States v.
Gonzalez, 250 F.3d 923, 925-29 (5th Cir. 2001).
AFFIRMED; MOTION FOR DISMISSAL OR SUMMARY AFFIRMANCE DENIED;
ALTERNATIVE REQUEST FOR EXTENSION OF TIME DENIED AS UNNECESSARY