### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17-50898

UNITED STATES OF AMERICA,
Plaintiff-Appellee

v. HERON PENA,
Defendant-Appellant

Appeal from the United States District Court for the Western Di strict of Texas USDC No. 1:11-CR-649-1

Before JONES, HAYNES, an d OLDHAM, Circuit Judges. PER CURIAM: * Heron Peña appeals his statutory-m aximum sentence of twenty-four months, which was imposed following the re vocation of his supe rvised release. For the first time on appe al, he argues the district court erred in two ways. First, he claims the district court based his sentence on unsupported allegations. Second, the district court imposed an ab ove-guidelines revocation sentence, which Peña argues it did not sufficiently explain. We reject these arguments and AFFIRM.

* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except und er the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 8, 2019

Lyle W. Cayce Clerk Case: 17-50898 Document: 00514785392 Page: 1 Date Filed: 01/08/2019No. 17-50898

2 In 2012, Peña pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U. S.C. § 922(g)(1), and was sentenced to sixty months’ imprisonment and three year s’ supervised release. He began serving his term of supervised release in April 2016. From May 2016 through March 2017 , Peña’s probatio n officer filed several reports of Peña’s noncompliance with the terms of his supervised release. The officer report ed that Peña threatened a psychiatrist, failed to take prescribed medications, became aggre ssive with a work supervisor, used methamphetamine, failed to pay a tw enty-five-dollar sp ecial assessment, failed to maintain steady employment, and failed to attend a cognitive lifeskills program. After the third report of noncompliance, the district court ordered a revocation hearing. At the March revocation hearing, the district court described those allegations to Peña and as ked him, “Are those facts true?” Peña responded, “Yes, sir.” Despite Peña’s many violations, the district court used its discretion to give him another opportunity and re turned him to supe rvised release. Peña again violated the terms of hi s supervised release. The probation officer reported that Peña failed a dr ug test, submitted a diluted drug test, failed to complete the cognit ive life-skills program, fa iled to work regularly at a lawful occupation, and failed to pay the twenty-five-dollar special assessment. The district court set anot her revocation hearing for September. At the September 2017 revocation hear ing, Peña was informed of similar allegations to those in the March 2017. This time, he equivocated on the allegations that he threat ened anyone and failed to complete the cognitive lifeskills program. The district court found him in violation of the terms of his supervised release and sentenced him above the recommended guidelines Case: 17-50898 Document: 00514785392 Page: 2 Date Filed: 01/08/2019No. 17-50898

3 range to the statutory maxi mum of twenty-four months. Now, for the first time on appeal, Peña argues that the sentence was erroneous. Because Peña did not object in the district court, re view is only for plain

error. United States v. Walker , 742 F.3d 614, 616 (5th Cir. 2014). To show plain error, Peña must iden tify an error that was cl ear or obvious and affects his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). If he does so, we have di scretion to correct the erro r but only if it “seriously affect[s] the fairness, integr ity or public reputation of judicial proceedings.” Id. (alteration in original) (internal qu otation marks and citation omitted). Peña has not shown that the di strict court relied on unsupported allegations. The record shows that the district co urt based the revocation sentence on Peña’s current supervised release violatio ns, as well as his history of noncompliance on supervised release. See United States v. Kippers , 685 F.3d 491, 497 (5th Cir. 2012). Peña argues that decision wa s error because the district court could not rely on admissions from the March revocation hearing during the September revocati on hearing. Peña offe rs no authority for the proposition that a judge cannot rely on a defendant’s ow n admissions in the same case, on the same issu e, just because they were ma de earlier in the year. Thus, any purported error in do ing so cannot be plain. See United States v. Escalante-Reyes , 689 F.3d 415, 419 (5th Cir. 2 012) (en banc) (not ing that plain error must be “clear or obvi ous, rather than subject to reasonable dispute”); United States v. Lucas , 849 F.3d 638, 645 (5th Cir. 2017) (“An erro r is not plain under current law if a defendant’s theory requires the extension of precedent.” (internal quotation marks omitted) (quoting United States v. Trejo , 610 F.3d 308, 319 (5th Cir. 2010))). Peña has also failed to show that th e district court failed to explain the above-guidelines sentence. The distric t court reviewed Peña’s supervised Case: 17-50898 Document: 00514785392 Page: 3 Date Filed: 01/08/2019No. 17-50898

4 release history and no ted that Peña returned to prison twice because he was aggressive and would not follow instructi ons, that Peña had been given three chances with different programs, and th at he had not show n any improvement over the course of his supervised release. The district court further stated that Peña had “earned” the tw enty-four-month, above-guidelines sentence. The district court’s reasons were adequate in view of th e record as a whole. See Rita v. United States , 551 U.S. 338, 356–58 (2007) . Thus, Peña has not shown any error, much less clear or obvious error. Further, Peña has not shown that any supposed error affected his substantial rights. See United States v. Whitelaw , 580 F.3d 256, 262–65 (5 th Cir. 2009). AFFIRMED. Case: 17-50898 Document: 00514785392 Page: 4 Date Filed: 01/08/2019