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 District of Texas 

USDC No. 1:11-CR-649-1 

Before JONES, HAYNES, and OLDHAM, Circuit Judges. 

PER CURIAM:*

 Heron Peña appeals his statutory-maximum sentence of twenty-four 

months, which was imposed following the revocation of his supervised release. 

For the first time on appeal, 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 above-guidelines revocation 

sentence, which Peña argues it did not sufficiently explain. We reject these 

arguments and AFFIRM. 

 

* 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. 

United States Court of Appeals 

Fifth Circuit 

FILED 

January 8, 2019 

Lyle W. Cayce 

Clerk 

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No. 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 years’ supervised release. He began serving his term 

of supervised release in April 2016. 

 From May 2016 through March 2017, Peña’s probation officer filed 

several reports of Peña’s noncompliance with the terms of his supervised 

release. The officer reported that Peña threatened a psychiatrist, failed to take 

prescribed medications, became aggressive with a work supervisor, used 

methamphetamine, failed to pay a twenty-five-dollar special 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 asked 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 returned him to supervised release. 

 Peña again violated the terms of his supervised release. The probation 

officer reported that Peña failed a drug test, submitted a diluted drug test, 

failed to complete the cognitive life-skills program, failed to work regularly at 

a lawful occupation, and failed to pay the twenty-five-dollar special 

assessment. The district court set another revocation hearing for September. 

At the September 2017 revocation hearing, Peña was informed of similar 

allegations to those in the March 2017. This time, he equivocated on the 

allegations that he threatened 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 

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range to the statutory maximum 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, review is only for plain 

error. United States v. Walker, 742 F.3d 614, 616 (5th Cir. 2014). To show 

plain error, Peña must identify an error that was clear or obvious and affects 

his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). 

If he does so, we have discretion to correct the error but only if it “seriously 

affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.

(alteration in original) (internal quotation marks and citation omitted). 

 Peña has not shown that the district court relied on unsupported 

allegations. The record shows that the district court based the revocation 

sentence on Peña’s current supervised release violations, 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 was error because the 

district court could not rely on admissions from the March revocation hearing 

during the September revocation hearing. Peña offers no authority for the 

proposition that a judge cannot rely on a defendant’s own admissions in the 

same case, on the same issue, just because they were made earlier in the year. 

Thus, any purported error in doing so cannot be plain. See United States v. 

Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (noting that plain 

error must be “clear or obvious, rather than subject to reasonable dispute”); 

United States v. Lucas, 849 F.3d 638, 645 (5th Cir. 2017) (“An error 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 the district court failed to explain the 

above-guidelines sentence. The district court reviewed Peña’s supervised 

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release history and noted that Peña returned to prison twice because he was 

aggressive and would not follow instructions, that Peña had been given three 

chances with different programs, and that he had not shown any improvement 

over the course of his supervised release. The district court further stated that 

Peña had “earned” the twenty-four-month, above-guidelines sentence. The 

district court’s reasons were adequate in view of the 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 (5th Cir. 2009). 

 AFFIRMED. 

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