United States v. John Cerda

Case: 14-50167 Document: 00512866035 Page: 1 Date Filed: 12/11/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50167
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 11, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOHN ALBERT CERDA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:07-CR-230-2
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
John Albert Cerda appeals from his 24-month sentence following the
revocation of his term of supervised release. He contends that his sentence is
plainly unreasonable because the district court impermissibly considered the
need to promote respect for the law and the need for just punishment when
imposing sentence and failed to consider his history and characteristics and
the policy statement recommending an 8-to-14-month sentence.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50167
Because Cerda did not suggest to the district court that it had relied on
an impermissible factor and failed to consider other factors or the policy
statements, we review for plain error. United States v. Whitelaw, 580 F.3d 256,
259 (5th Cir. 2009). To prevail under the plain error standard, Cerda “must
show an error that is clear or obvious and affects his substantial rights.” Id.
at 260. If he makes such a showing, this court may exercise its discretion to
correct the error, “but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
Among the factors a district court should consider when imposing
sentences generally is “the need for the sentence imposed . . . to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). The factors in
subsection (a)(2)(A), however, are not listed among the factors that a district
court should consider when deciding whether to revoke a term of supervised
release and impose sentence pursuant to 18 U.S.C. § 3583(e). See § 3583(e).
“[I]t is improper for a district court to rely on § 3553(a)(2)(A) for the
modification or revocation of a supervised release term.” United States v.
Miller, 634 F.3d 841, 844 (5th Cir. 2011).
Miller, however, addressed a revocation and sentencing pursuant to
§ 3583(e). Id. Cerda’s revocation and sentencing were based in part on an
allegation that he failed to submit to drug testing on three separate occasions.
See 18 U.S.C. § 3583(g). Although he pleaded true to the allegation, he argues
here that his failure to submit to testing was not deliberate. Revocation and a
sentence of imprisonment were mandatory pursuant to § 3583(g), which does
not list or omit any of the § 3553(a) sentencing factors. See id. We have not
found clear or obvious error when a district court has considered the factors set
out at § 3553(a)(2)(A) in revocations that are governed in whole or in part by
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§ 3583(g). See, e.g., United States v. Urbina, 551 F. App’x 176, 177 (5th Cir.
2014); United States v. Flores-Gaytan, 542 F. App’x 353, 354 (5th Cir. 2013);
United States v. Holmes, 473 F. App’x 400, 401 (5th Cir. 2012); United States
v. Wilson, 460 F. App’x 351, 352 (5th Cir.), cert. denied, 132 S. Ct. 2759 (2012).
Although the cases on point are unpublished, they are “highly persuasive
because [this court] explicitly rejected the identical argument that [Cerda]
advances here.” United States v. Pino Gonzalez, 636 F.3d 157, 160 (5th Cir.
2011).
Moreover, Cerda cannot show that his substantial rights were affected.
See Puckett v. United States, 556 U.S. 129, 135 (2009). The district court
considered the recommended imprisonment range of 8 to 14 months, the 24-
month statutory maximum term of imprisonment, Cerda’s above-average
intelligence, the nature and circumstances of his supervised release violations,
the fact that he had been attending cosmetology school and his grades there,
and other aspects of his history and characteristics. Because the district court
relied upon permissible § 3553(a) factors, see § 3553(a)(1), (a)(4)(B); § 3583(e),
the record does not unambiguously indicate that, but for the district court’s
consideration of other improper factors, there is a reasonable probability that
the district court would have imposed a lower sentence. See United States v.
Davis, 602 F.3d 643, 647 (5th Cir. 2010). Accordingly, Cerda cannot
demonstrate reversible plain error in connection with this argument. See
Puckett, 556 U.S. at 135.
Finally, with regard to Cerda’s claim that the district court failed to
consider his history and characteristics and the policy statements, the district
court at least implicitly considered these factors. See Whitelaw, 580 F.3d at
262-65 (recognizing that the district court’s implicit consideration of the
§ 3553(a) factors is sufficient to satisfy § 3553(c)’s requirement that it provide
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reasons for an above guidelines sentence). Specifically, the district court’s
comments demonstrate that it considered the applicable policy statements, the
nature and circumstances of Cerda’s supervised release violations, and his
history and characteristics. See § 3553(a)(1), (a)(4)(B); § 3583(e). Moreover,
nothing in the record suggests that a more thorough explanation would have
resulted in a lesser sentence or that the district court would impose a lesser
sentence on remand. See Whitelaw, 580 F.3d at 262-65. Accordingly, Cerda
cannot demonstrate reversible plain error. See Puckett, 556 U.S. at 135.
AFFIRMED.
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