United States v. Jose Frias-Rodriguez

Case: 12-50685 Document: 00512223768 Page: 1 Date Filed: 04/29/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 29, 2013
No. 12-50685
c/w No. 12-50689 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE FRIAS-RODRIGUEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-2096-1
USDC No. 2:12-CR-66-1
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Jose Frias-Rodriguez (Frias) pleaded guilty to being found unlawfully in
the United States and was sentenced to a guideline range term of imprisonment
of 21 months to be followed by a three-year term of supervised release. The
district court also revoked Frias’s term of supervised release on a prior
conviction and imposed a sentence at the top of the advisory range of 18 months,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-50685 Document: 00512223768 Page: 2 Date Filed: 04/29/2013
No. 12-50685
c/w No. 12-50689
to run consecutively to the illegal reentry sentence. Frias is appealing from the
imposition of the consecutive revocation sentence, arguing that it was not
reasonable because the stacked sentence was greater than necessary to meet the
objectives of 18 U.S.C. § 3553(a).
Frias contends that review of his revocation sentence should be for
reasonableness. Because Frias failed to object to the reasonableness of his
revocation sentence, we need not reach any dispute over standards of review
because this court’s review is for plain error. See United States v. Whitelaw, 580
F.3d 256, 259-60 (5th Cir. 2009); Puckett v. United States, 556 U.S. 129, 135
(2009). Frias argues that the imposition of the consecutive sentence was plainly
unreasonable because it was greater than necessary to achieve the goals of the
sentencing factors in § 3553(a).
The imposition of the consecutive revocation sentence is authorized by
statute and preferred under the Guidelines. See 18 U.S.C. § 3584; U.S.S.G.
§ 7B1.3(f), p.s., & comment. (n.4). The district court’s comments at sentencing
reflect that it had considered the permissible § 3553(a) factors in determining
that the consecutive 18-month revocation sentence, which was within the
advisory range, was an appropriate and reasonable sentence. Frias has failed
to show that the district court, in determining that the revocation sentence
should run consecutively to the sentence for the new offense, committed any
error, plain or otherwise. See Puckett, 556 U.S. at 135.
Frias has not challenged his illegal reentry conviction or the sentence
imposed for that offense. Thus, he has abandoned any claims arising out of that
conviction or sentence. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)
The convictions and sentences in both of the appeals are AFFIRMED.
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