IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30135

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FREDERICK ROBERTSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of Louisiana

No. 3:09-CR-111-1

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Frederick Robertson appeals the 24-month sentence imposed following the

revocation of his term of supervised release. He argues that the sentence, which

United States Court of Appeals

Fifth Circuit

F I L E D

October 27, 2010

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. 10-30135

exceeds the guideline range of 8-14 months, is procedurally and substantively

unreasonable.

This court has not yet determined what standard of review applies to sentences imposed on revocation of supervised release in the wake of United States

v. Booker, 543 U.S. 220 (2005). United States v. Jones, 484 F.3d 783, 791-92 (5th

Cir. 2007). Because, however, Robertson did not object to the sentence in the

district court, and because he failed to raise there the specific claims of procedural error that he argues on appeal, review is for plain error only. See id.; United

States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).

To show plain error, Robertson must first show an error that is clear or obvious and that affects his substantial rights. See United States v. Baker, 538

F.3d 324, 332 (5th Cir. 2008). Robertson contends that the district court erred

in basing its sentence on allegations that, in separate incidents, he assaulted his

daughter and his girlfriend with a firearm and that the court erred by failing

properly to explain its upward variance. Contrary to Robertson’s argument, the

allegations in question were not unsubstantiated.

The district court’s finding that Robertson assaulted his daughter and his

girlfriend with a handgun was based on the probation officer’s testimony at the

revocation hearing. To the extent that the probation officer’s testimony was

based on statements made by the victims, it may have been hearsay, but the

court committed no procedural error by considering such evidence in determining Robertson’s sentence. See United States v. West, 58 F.3d 133, 138 (5th Cir.

1995). The testimony of Robertson’s mother contradicted the probation officer’s

testimony regarding the altercation between Robertson and his daughter, but

the court implicitly resolved the conflict in favor of the probation officer’s testimony by finding that Robertson had committed the alleged violation. Because

the factual determination was plausible in light of the entire record, it was not

clearly erroneous. See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).

Robertson appears to contend that the district court’s failure to explain its

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No. 10-30135

upward variance from the guideline range, in terms of the sentencing factors of

18 U.S.C. § 3553(a), renders his sentence unreasonable. But the court was not

required to mention the § 3553(a) factors explicitly when pronouncing sentence.

See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).

The court’s consideration of the statutory factors, specifically § 3553(a)(1),

the nature of the offense and the history and characteristics of the defendant, is

implicit in the court’s discussion of the assaults, the lengthy criminal history,

and the previous revocation of a term of supervised release. Robertson has not

shown error, plain or otherwise, with respect to the procedural aspects of his

sentencing.

Robertson’s argument that the sentence is substantively unreasonable is

largely premised on his contention that it was error for the court to base its upward variance on the allegations regarding his assaults. As the previous discussion illustrates, there was no reversible procedural error in the factual findings

as to these allegations or in the court’s consideration of the assaults in determining the sentence.

On revocation of supervised release, the district court may impose any sentence that falls within the statutory maximum term. See Whitelaw, 580 F.3d at

264. Revocation sentences exceeding the guideline range but not exceeding the

statutory maximum have been upheld as a matter of routine against challenges

that the sentences were substantively unreasonable. See id. at 265. Because the

sentence does not exceed the statutory maximum, it is not plain error. See id.

AFFIRMED.

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Case: 10-30135 Document: 00511276169 Page: 3 Date Filed: 10/27/2010