United States v. April Torres

Case: 18-11244 Document: 00515107923 Page: 1 Date Filed: 09/06/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11244 FILED
Summary Calendar September 6, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
APRIL TORRES,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-244-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
April Torres pleaded guilty to conspiracy to possess with intent to
distribute marijuana and was sentenced to 151 months of imprisonment
followed by five years of supervised release. The district court revoked Torres’s
supervised release and sentenced her to 30 months of imprisonment, which
was above the policy statement range of 6 to 12 months. Torres filed a timely
notice of appeal.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11244
Torres argues that her 30-month revocation sentence is substantively
unreasonable because the district court failed to fully consider her history and
characteristics and overemphasized the need for deterrence when balancing
the sentencing factors. This court considers the substantive reasonableness of
a revocation sentence under an abuse-of-discretion standard, “examining the
totality of the circumstances.” United States v. Warren, 720 F.3d 321, 332 (5th
Cir. 2013).
The record reflects that the district court considered the policy statement
range from Chapter 7 of the Sentencing Guidelines and ultimately determined
that a 30-month sentence was necessary to protect the public and to deter
further criminal activity—factors that were appropriate for the district court
to consider in imposing the revocation sentence. 18 U.S.C. § 3583(e)
(identifying 18 U.S.C. § 3553(a) factors to be considered). This court must give
due deference to the district court’s decision and thus declines to reweigh the
factors. Gall v. United States, 552 U.S. 38, 51 (2007).
Though the district court simply noted that Torres had “twice had her
terms of supervised release revoked for committing additional crimes” and
stated that “nothing short of incarceration deters . . . Torres from committing
additional crimes,” the court was aware of Torres’s full history and
characteristics. At the revocation hearing, the court heard from Torres and
her attorney about her current employment, living situation, and financial and
family obligations. Moreover, the same district judge who presided over the
instant revocation also presided over Torres’s two prior supervised release
revocations.
Finally, Torres’s 30-month revocation sentence is below the statutory
maximum term of imprisonment of five years. See 18 U.S.C. § 3559(a)(1); 18
U.S.C. § 3583(e)(3); 21 U.S.C. § 841(a)(1), (b)(1)(A). This court has routinely
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Case: 18-11244 Document: 00515107923 Page: 3 Date Filed: 09/06/2019
No. 18-11244
upheld revocation sentences exceeding the policy statement range, but not the
statutory maximum, against challenges that the sentences were substantively
unreasonable. Warren, 720 F.3d at 332. Under the totality of the
circumstances, the district court did not abuse its discretion in imposing
Torres’s revocation sentence. See id.
The judgment of the district court is AFFIRMED.
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