### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIFTH CIRCUIT

No. 11-11112 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. DAROLD ELLSWORTH, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CR-30-1

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges. PER CURIAM: * Darold Ellsworth appeals the 18-month sentenc e that was imposed on revocation of his term of supervised release. Ellsworth argues that the district court improperly considered the factor of punishm ent in 18 U.S.C. § 3553(a)(2)(A) as a basis for imposing a sentence substantially higher than the policy statement required. He assert s that the district court indicated that it

was issuing a sentence based in part upon punishment, which improper consideration likely exerted upward pressure on the sentence. Ellsworth states U n i te d S ta te s C o u rt o f Ap p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 26 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publish ed and is not pr ece dent excep t unde r the lim ite d circum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 11-11112 Document: 00512033567 Page: 1 Date Filed: 10/26/2012No. 11-11112

that the district court “meant it was punishing him for his technical violations of supervised release, a factor plainly forbidden by this Court to consider.” We revi e w a sentence imposed on revocation of supervised release to determine if it is “plainly unreasonable.” United States v. Miller , 634 F.3d 841, 843 (5th Cir. 2011). In Miller , we held that it is improper for a district court to rely on § 3553(a)(2)(A), which permits a sentencing court to consider the need for the sentence “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense,” when modifying or revoking a term of supervised release. Miller , 634 F.3d at 844. In response to Ellsworth’s objection, the district court clarified the context in which it used the term “punishment,” meaning punishment for violating the terms of his supervised release. As the Government correctly notes, “the goal of revocation is to punis h a d ef endant for violating the terms of the supervised release.” Miller , 634 F.3d at 843. The district court’s reference to punishment did not amount to an improper consideration of the just punishment factor of § 3553(a)(2)(A) that we held was improper in Miller

. Further, Ellsworth’s supervised release was revoked under § 3583(e) and (g), because one of the violations to which he pleaded true was failure to comply with the drug testing requirement, a mandatory revoc ation violation under § 3583(g)(3). Section 3583(g) does not expressly invoke the sentencing factors of § 3553(a) or the limits imposed by the first clause of § 3583(e). See § 3583(g); United States v. Giddings , 37 F.3d 1091, 1095 (5th Cir.1994) (noting that a court need not consider § 3553(a) when revoc ati o n is mandated by § 3583(g)). Ellsworth has not shown that the district court procedurally erred because when revocation of supervised release is man d at o ry u nder § 3583(g), the factors a sentencing court may consider is not limited by § 3583(e). See United States v. Larison , 432 F.2d 921, 923 n.3 (8th Cir. 2006); cf. United States v. Holmes, 473 F

. App’x 400, 401 (5th Cir. 2012) (reviewing for plain error); United States v.

2 Case: 11-11112 Document: 00512033567 Page: 2 Date Filed: 10/26/2012No. 11-11112

Ibanez , 454 F. App’x 328, 330 (5th Cir. 2011) (same), cert. denied , 132 S. Ct. 1981 (2012). The judgment of the district court is AFFIRMED.

3 Case: 11-11112 Document: 00512033567 Page: 3 Date Filed: 10/26/2012