IN THE UNITED STATES COURT OF APPEALS

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 sentence that was imposed on

revocation of his term of supervised release. Ellsworth argues that the district

court improperly considered the factor of punishment in 18 U.S.C.

§ 3553(a)(2)(A) as a basis for imposing a sentence substantially higher than the

policy statement required. He asserts 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

United States Court of Appeals

Fifth Circuit

F I L E D

October 26, 2012

Lyle W. Cayce

Clerk

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. 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 review 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 punish a defendant 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 revocation 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 revocation is mandated by § 3583(g)).

Ellsworth has not shown that the district court procedurally erred because when

revocation of supervised release is mandatory under § 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.

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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.

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