United States v. Anilou Del Rio ( 2020 )

Case: 19-10915 Document: 00515480251 Page: 1 Date Filed: 07/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10915 July 7, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANILOU BELTRAN DEL RIO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-96-49
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Anilou Beltran Del Rio, previously convicted of conspiracy to possess
with intent to distribute a controlled substance, appeals the mandatory
revocation of her supervised release pursuant to 18 U.S.C. § 3583(g) and her
24-month revocation sentence. We affirm.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10915
First, Del Rio argues that her sentence should be vacated because the
district court erroneously believed that the advisory policy statement range
was 24 to 30 months of imprisonment. Alternatively, she argues that the
district court plainly and reversibly erred by failing to state its calculations for
the advisory range under U.S.S.G. § 7B1.4, p.s. The record refutes these
arguments. Specifically, the revocation hearing colloquy reflects the district
court’s understanding that the advisory sentencing range was 4 to 10 months.
Likewise, the district court’s statement of reasons (issued after a limited
remand to correct a clerical error) states explicitly that the court applied a
policy statement range of 4 to 10 months and sets forth its rationale for the
above-range sentence. Del Rio has not shown that the 24-month revocation
sentence is plainly unreasonable. See United States v. Sanchez, 900 F.3d 678,
682 (5th Cir. 2018).
Next, Del Rio argues that § 3583(g) is unconstitutional in light of United
States v. Haymond, 139 S. Ct. 2369 (2019), because it does not require a jury
determination of guilt beyond a reasonable doubt. As she concedes, review of
this unpreserved issue is for plain error. See Puckett v. United States, 556 U.S.
129, 135 (2009). To prevail on plain error review, she must show a forfeited
error that is clear or obvious and that affects her substantial rights. See id. If
she makes such a showing, this court has the discretion to correct the error
and should do so “only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal quotation marks,
citation, and alteration omitted).
The Supreme Court’s decision in Haymond addressed the
constitutionality of § 3583(k), and the plurality opinion specifically declined to
“express a view on the mandatory revocation provision for certain drug and
gun violations in § 3583(g).” Haymond, 139 S. Ct at 2382 n.7 (plurality
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Case: 19-10915 Document: 00515480251 Page: 3 Date Filed: 07/07/2020
No. 19-10915
opinion). The application of § 3583(g) was not plain error. See United States
v. Badgett, 957 F.3d 536, 539-41 (5th Cir. 2020).
AFFIRMED.
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