United States v. Arellano ( 2023 )

Case: 23-10106 Document: 00516959240 Page: 1 Date Filed: 11/07/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10106
Summary Calendar FILED
____________ November 7, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Andrew P. Arellano,
Defendant—Appellant,
consolidated with
_____________
No. 23-10107
_____________
United States of America,
Plaintiff—Appellee,
versus
Andrew Perez Arellano,
Defendant—Appellant.
Case: 23-10106 Document: 00516959240 Page: 2 Date Filed: 11/07/2023
______________________________
Appeals from the United States District Court
for the Northern District of Texas
USDC Nos. 3:20-CR-627-1, 3:20-CR-565-1
______________________________
Before Willett, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Andrew Perez Arellano pleaded guilty to conspiracy to distribute a
controlled substance. The district court sentenced him to 240 months in
prison. A revocation hearing immediately followed. While on supervised
release, Arellano violated the conditions of his release multiple times, and
committed another federal offense that involved an extensive drug
conspiracy and large quantities of drugs. Because of this conduct, the
Government argued for the statutory-maximum revocation sentence and for
it to be run consecutively to his sentence for conspiracy to distribute a
controlled substance. The district court agreed, stating, “I think [the
Government] makes a good point about the type of offense and how – what
an upper level he was in this offense So I’m going to run the sentence
consecutively.” It then revoked his supervised release and sentenced him to
a consecutive term of 24 months.
Arellano challenges the revocation sentence, 1 asserting that the
district court improperly considered factors outlined in 18 U.S.C.
§ 3553(a)(2)(A). He bases this argument on the statement above, as well as
statements made during the sentencing related to Arellano’s guilty plea for
conspiracy to distribute a controlled substance.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
Because Arellano makes no argument pertaining to his 240-month sentence, he
has abandoned any claim relating to that sentence. See United States v. Reagan, 596 F.3d
251, 254–55 (5th Cir. 2010).
2
Case: 23-10106 Document: 00516959240 Page: 3 Date Filed: 11/07/2023
23-10106
c/w No. 23-10107
Because Arellano did not object to the revocation sentence before the
district court, review is for plain error. Arellano must show that: “(1) the
district court erred, (2) the error was clear or obvious, (3) the error affected
his substantial rights, and (4) this court should exercise its discretion to
correct the error because the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” In re Deepwater Horizon, 824 F.3d
571, 583 (5th Cir. 2016) (citing Puckett v. U.S., 556 U.S. 129, 135 (2009)).
Arellano fails to make this showing. The district court’s comments
do not show that it considered retribution in imposing the sentence
consecutively. See U.S. v. Sanchez, 900 F.3d 678 (5th Cir. 2018) (explaining
that district courts may not consider retribution for revocation sentences).
However, district courts may consider the defendant’s history and
characteristics, the need to deter the defendant from future criminal activity,
and the need to protect the public. 18 U.S.C. § 3583(e) (citing 18 U.S.C.
3553(a)(1), (a)(2)(B), & (a)(2)(C)). The district court’s comments were
made in response to the Government’s argument about Arellano’s escalating
conduct while on supervised release, and do not reference punishment or
retribution. Rather, they accord with the permitted considerations. Thus,
Arellano fails to demonstrate plain error. In re Deepwater Horizon, 824 at 583.
AFFIRMED.
3