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Case: 22-50752 Document: 00516815366 Page: 1 Date Filed: 07/10/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50752 Summary Calendar FILED ____________ July 10, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Eric Hernandez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:16-CR-197-1 ______________________________ Before Stewart, Dennis, and Willett, Circuit Judges. Per Curiam: * Eric Hernandez appeals the 24-month sentence imposed upon revocation of his supervised release. He argues that his due process rights were violated when the district court revoked his supervised release and based his revocation sentence on abandoned, unproved allegations in the petitions to revoke. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-50752 Document: 00516815366 Page: 2 Date Filed: 07/10/2023 No. 22-50752 Inasmuch as Hernandez contends that the revocation of his supervised release was error, the argument is meritless. As Hernandez concedes, he pleaded true to the charged supervised release violation based on his new felon-in-possession offense. The district court thus did not abuse its discretion in revoking his release. See United States v. Spraglin,
418 F.3d 479, 480 (5th Cir. 2005);
18 U.S.C. § 3583(e)(3). To the extent that Hernandez contends that the district court violated his due process rights by varying upwardly from the guidelines range to impose the statutory maximum sentence without full disclosure of the evidence against him and the opportunity to cross-examine adverse witnesses, the argument is unavailing as his challenge to his sentence does not implicate any due process concerns. See United States v. Williams,
847 F.3d 251, 254 (5th Cir. 2017). Hernandez argues that the revocation sentence is substantively unreasonable, urging that the district court erroneously varied upwardly to the statutory maximum sentence based on impermissible factors, the charged supervised release violations which the Government abandoned at revocation. The record demonstrates that the district court explicitly considered the advisory guidelines range but balanced that against the nature and circumstances of Hernandez’s supervised release violation and his history and characteristics and found that the guidelines range was inappropriate. The district court ultimately concluded that the 24-month, above-guidelines sentence was necessary to provide adequate deterrence and to protect the public from future crimes—factors that were appropriate for the district court to consider in imposing the revocation sentence and which this court will not reweigh. See Gall v. United States,
552 U.S. 38, 51 (2007); § 3583(e);
18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C). Hernandez’s assertion to the contrary notwithstanding, the court never referenced an impermissible factor. See § 3553(a)(2)(A); cf. United States v. Miller,
634 F.3d 841, 842, 844 (5th Cir. 2011). Moreover, the extent of the upward variance, 2 Case: 22-50752 Document: 00516815366 Page: 3 Date Filed: 07/10/2023 No. 22-50752 from a range of four to 10 months to a sentence of 24 months, does not constitute an abuse of discretion as this court has routinely upheld larger variances, even where the sentence is the statutory maximum. See, e.g., United States v. Warren,
720 F.3d 321, 332 (5th Cir. 2013); United States v. Kippers,
685 F.3d 491, 500-01 (5th Cir. 2012); United States v. Whitelaw,
580 F.3d 256, 265 (5th Cir. 2009). Hernandez has not shown that his revocation sentence is plainly unreasonable. See Warren,
720 F.3d at 326, 332; Miller,
634 F.3d at 843. Accordingly, the district court’s judgment is AFFIRMED. 3
Document Info
Docket Number: 22-50752
Filed Date: 7/10/2023
Precedential Status: Non-Precedential
Modified Date: 7/11/2023