### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-50085 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. SEVERO GREGORIO GONZALES, also known as Severo Gregario Gonzales, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 7:09-CR-32-1

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * Severo Gregorio Gonzales appeals the 18-month term of imprisonment imposed following the revocation of his supervised release for importation of marijuana. H e a r gu e s that his sentence, which exceeds the range set forth in the nonbinding policy statements set forth in Chapter Seven of the Sentencing Guidelines but is within the statutory maximum, is procedurally unreasonable because the district court failed to consider the applicable 18 U.S.C. § 3553(a) sentencing factors and failed to articulate its reasons for imposing sentence. He U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 1 2, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-50085 Document: 00512081868 Page: 1 Date Filed: 12/12/2012No. 12-50085

further argues, in reliance on United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006), that the sentence is substantively unreasonable because it fails to reflect the sentencing factors set forth in § 3553(a). Revocation sentences generally are reviewed under 18 U.S.C. § 3742(a)’s “plainly unreasonable” standard. United States v. Miller , 634 F.3d 841, 843 (5th Cir.), cert. denied, 132 S. Ct. 4 96 (2011). As Gonzales concedes, however, because he raised no objections in the district court, revi e w i s f o r plain error. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). Under the plain error standard, Gonzales must show a clear or obvious error that affected his substantial rights. See Pu c k e t t v . U n ited States , 556 U.S. 129, 135 (2009). This court has discretion to corre c t the error but only if it seriously affects the fairness, integrity, or public reputation of the proceedings. Id

. The district court did not expressly reference § 3553(a) in imposing sentence. Although the court’s comments in imposing sentence were brief, the record reflects that the court considered the policy statement range of three to nine months, Gonzales’s thr e e p rio r r evo c atio n s of s up e rvised release, Gonzales’s comments at the revocation hearing, defense counsel’s arguments in mitigation of sentence, and the Government’s arguments that a sentence above the recommended range was warranted. The record reflects that the court considered the nature and circumstances of Gonzales’s supervised release violation as well as his history and characteristics in imposing sentence and thus implicitly considered the § 3553(a) factors. See § 3553(a)(1); Whitelaw , 580 F.3d at 262-65; United States v. Gonzales , 250 F.3d 923, 930 (5th Cir. 2001). The d i s trict court’s explanation, in the context of the revocation hearing, was sufficient, and, thus, Gonzales has not shown clear or obvious error. Cf. Whitelaw , 580 F.3d at 2 6 1

- 6 2 (d e t e r mining that lack of explicit statement setting forth reasons for imposition of sentence outside of recommended gu i d elines range was n o t clear or obvious error). Nothing in the record suggests that a

more thorough explanation would have resulted in a shorter sentence, and there
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is no suggestion in the record that the district court considered any i m proper factor or would impose a d i f ferent sentence on remand. See id. at 264-65. Gonzales has not demonstrated plain error with respect to his challenge to the district court’s explanation of the sentence imposed upon revocation. See id. at 265. The court’s comments at s e n t encing, in the context of the revocation hearing, reflect that the court was imposing the 18-month sentence on the basis of Gonzales’s specific history and characteristics, which inclu d ed that Gonzales’s admitted cocaine use in October 2011 followed his th r e e prior revocations of supervised release, one for testing positively for cocaine use and two for absconding from supervision. See § 3553(a)(1). Contrary to Gonzales’s appellate argument, the record does not reflect that the sentence “unreasonably fail[ed] to reflect the statutory sentencing factors.” Smith , 440 F.3d at 708. Gonzales’s revocation sentence did not exceed the statutory maximum sentence; accordingly, he has not shown that the sentence imposed constituted plain error. See Whitelaw , 580 F.3d at 265. AFFIRMED.

3 Case: 12-50085 Document: 00512081868 Page: 3 Date Filed: 12/12/2012