United States v. Jimenez , 299 F. App'x 459 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 19, 2008
No. 08-40184
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FERMIN E JIMENEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-153-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Fermin E. Jimenez, who was convicted of possessing with intent to
distribute more than 500 grams of cocaine, appeals the 12-month sentence
imposed upon revocation of his supervised release. Jimenez argues that the
district court failed to articulate adequate reasons for imposing a sentence that
exceeded the advisory guidelines range of three to nine months. He further
argues that the district court abused its discretion relative to the degree of the
upward departure.
*
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should not be published and is not precedent except under the limited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. 08-40184
Because Jimenez raised no objection in the district court, we review for
plain error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.
2008). To establish plain error, Jimenez must show an error that is clear or
obvious and that affects his substantial rights. See United States v. Baker, 538
F.3d 324, 332 (5th Cir. 2008). If the appellant makes such a showing, this court
has the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
The district court addressed Jimenez at length during the revocation
hearing and discussed such 18 U.S.C. § 3553(a) factors as his numerous
violations of his conditions of release, his need to respect the law, the need for
deterrence, and Jimenez’s need for drug treatment and mental health treatment.
The court further noted to Jimenez that while his revocation sentence exceeded
the policy statement recommendation, it was not as long as it could have been.
Thus, Jimenez has failed to show that the district court plainly erred with
respect to its statement of oral reasons for the upward departure. See United
States v. McKinney, 520 F.3d 425, 427-28 (5th Cir. 2008).
However, the district court’s written judgment does not indicate its specific
reasons for the upward departure. A written statement of reasons is a
requirement of procedural due process in ordinary probation revocation
hearings. United States v. Kindred, 918 F.2d 485, 488 (5th Cir. 1990). While the
district court’s failure to provide written reasons could constitute an error that
is plain or obvious, Jimenez does not attempt to show that the error affected his
substantial rights. He therefore has not shown that the district court plainly
erred by failing to provide written reasons for the upward departure. See Baker,
538 F.3d at 332.
As for the degree of the upward departure, Jimenez was sentenced to a
prison term (12 months) that was within the statutory maximum for his
revocation sentence and that was 90 days above the guidelines range of three to
nine months. The record shows that the district court considered § 3553(a)
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No. 08-40184
factors that supported the degree of the upward departure. Jimenez has not
shown a clear or obvious error.
The judgment of the district court is AFFIRMED.
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