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United States v. Rodriguez ( 2023 )


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  • Case: 22-10916         Document: 00516778818             Page: 1      Date Filed: 06/08/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10916
Summary Calendar                                   FILED
____________                                     June 8, 2023
Lyle W. Cayce
United States of America,                                                           Clerk
Plaintiff—Appellee,
versus
Brithany Rodriguez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CR-149-1
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
In 2020, Brithany Rodriguez pleaded guilty of conspiracy to transport
illegal aliens, in violation of
    8 U.S.C. § 1324
    (a)(1), and was sentenced to 12
months and one day of imprisonment, followed by three years of supervised
release (“SR”). In July 2022, her probation officer filed a petition to revoke,
alleging that she had violated her conditions of SR by (1) committing a new
state crime, (2) possessing and using cocaine, (3) failing to attend outpatient
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10916      Document: 00516778818           Page: 2    Date Filed: 06/08/2023
No. 22-10916
substance abuse treatment, (4) failing to attend mental health treatment,
(5) failing to submit to substance abuse testing, (6) being expelled from a
residential reentry center for failure to submit to substance abuse testing, and
(7) failing to enroll in a GED program. As to the first allegation, the probation
officer claimed that Rodriguez had physically assaulted her boyfriend, Aldo
Martinez.
At the revocation hearing, Rodriguez pleaded true to allegations 2
through 7 but contested the first allegation. Despite being served with a sub-
poena, Martinez did not appear to testify. Instead, the government intro-
duced the testimony of the two police officers who responded to the assault
call, as well as their body camera videos, the police report, Martinez’s sworn
affidavit, and photographs showing scratches on Martinez’s face. The dis-
trict court overruled Rodriguez’s objection to the admission of Martinez’s
out-of-court statements without confrontation, found that Rodriguez com-
mitted an assault as alleged, revoked SR, and sentenced her to 18 months of
imprisonment, with no additional term of SR. Rodriguez appeals.
First, Rodriguez challenges the admission of Martinez’s recorded
statements, urging that the district court lacked good cause to deny her right
to confront him and that his statements were unreliable. We review this
claim “de novo, subject to harmless error analysis.” United States v. Jimison,
    825 F.3d 260
    , 262 (5th Cir. 2016). Here, any error in admitting Martinez’s
statements without confrontation was harmless because it did not affect Rod-
riguez’s substantial rights. See id.; see also Molina-Martinez v. United States,
    578 U.S. 189
    , 194 (2016); United States v. Carrillo,
    660 F.3d 914
    , 927 (5th Cir.
2011). Revocation of Rodriguez’s SR was mandatory because she admitted
that she possessed a controlled substance, refused to comply with drug tes-
ting, and had more than three positive drug tests in one year. See
    18 U.S.C. § 3583
    (g)(1), (3), (4). The assault charge, on the other hand, did not mandate
revocation and did not change the grade of Rodriguez’s violations or her sug-
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No. 22-10916
gested imprisonment range.       See § 3583(g); U.S.S.G. § 7B1.1(a), p.s.;
U.S.S.G. § 7B1.4(a), p.s. Accordingly, the admission of Martinez’s state-
ments did not affect the outcome of the proceeding. See Molina-Martinez,
578 U.S. at 194; United States v. Minnitt,
    617 F.3d 327
    , 335 (5th Cir. 2010).
To the extent the admission of Martinez’s statements affected the length of
the sentence, “[a] revocation defendant’s due process right to confrontation
does not apply in connection with the length of any resulting sentence.”
United States v. Williams,
    847 F.3d 251
    , 254 (5th Cir. 2017).
Rodriguez contends that the sentence was plainly unreasonable be-
cause it considered an improper factor: the need to promote respect for the
law. See
    18 U.S.C. § 3553
    (a)(2)(A); § 3583(e)(3); United States v. Warren,
    720 F.3d 321
    , 332 (5th Cir. 2013); United States v. Miller,
    634 F.3d 841
    , 843
(5th Cir. 2011). The district court relied on appropriate § 3553(a) factors in
determining that the sentence was warranted, as it addressed the nature and
circumstances of Rodriguez’s violations; her history and characteristics, in-
cluding her repeated history of failing to comply with her conditions of SR;
and the need to deter future criminal activity and protect the public. See
§ 3553(a); Warren,
    720 F.3d at 333
    ; see also United States v. Cano,
    981 F.3d 422
    , 426 (5th Cir. 2020). Despite a brief mention of the need to promote
respect for the law, the court’s reasons did not rely on this improper factor,
and the record does not reflect that the need to promote respect for the law
was a dominant factor in the decision. See United States v. Foley,
    946 F.3d 681
    , 687–88 (5th Cir. 2020).
The judgment is AFFIRMED.
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