IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10997

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GABINO LOPEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:06-CR-5-2

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:

*

Gabino Lopez appeals the 36-month term of imprisonmentimposed upon

the revocation of his supervised release following a conviction for conspiracy to

possess with intent to distribute and possession with intent to distribute more

than 500 grams of cocaine. He argues that his sentence, which exceeds the

range set forth in the nonbinding policy statements in Chapter Seven of the

Sentencing Guidelines but is within the statutory maximum, is procedurally

United States Court of Appeals

Fifth Circuit

F I L E D

July 24, 2013

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. 12-10997

unreasonable because the district court failed to articulate adequate reasons

for the sentence.

Although we generally review revocation sentences under 18 U.S.C.

§ 3742(a)’s “plainly unreasonable” standard, United States v. Miller, 634 F.3d

841, 843 (5th Cir. 2011), Lopez did not raise the specific issue he raises here in

the district court and we thus review for plain error. See United States v.

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

Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir. 2007). Under the plain

error standard, Lopez must show a clear or obvious error that affected his

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

have discretion to correct such an error only if it seriously affects the fairness,

integrity, or public reputation of the proceedings. See id.

Lopez asserts generally that a district court frustrates the purpose of the

Sentencing Reform Act of 1984, deprives a defendant of his due process rights,

and violates the principle of separation of powers when it sentences a

defendant outside of the policy statement range without an adequate

explanation. When a district court deviates from the policy statement range,

Lopez asserts, it must provide an explicit rationale demonstrating that the

United States Sentencing Commission unsoundly applied “its fact-findings to

its statutory purpose” in crafting the relevant guideline provisions.

In choosing a sentence, a district court must consider most of the factors

enumerated in 18 U.S.S.C. § 3553(a) and the policy statements found in

Chapter Seven of the Guidelines. 18 U.S.C. § 3583(e)(3); see U.S.S.G. Ch. 7, Pt.

B, intro. comment. Contrary to Lopez’s contention that, under FCC v. Fox

Television Stations, Inc., 556 U.S. 502 (2009), an explicit rationale should be

required for a district court setting a non-guidelines sentence on revocation, we

have required, based on § 3553(c) and Rita v. United States, 551 U.S. 338,

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356-57 (2007), that the district court provide “some explanation” if it imposes

a revocation sentence that falls outside a defendant’s advisory sentencing

guidelines range. Whitelaw, 580 F.3d at 261-62. “[A] district court need not

engage in a checklist recitation of the section 3553(a) factors,” United States

v. Kippers, 685 F.3d 491, 498 (5th Cir. 2012) (internal quotation marks and

citation omitted), but should articulate reasons that are sufficient to “satisfy

the appellate court that [the district court] has considered the parties’

arguments and has a reasoned basis for exercising [its] own legal

decisionmaking authority.” Rita, 551 U.S. at 356.

In setting the sentence in the instant matter,the district court permitted

Lopez’s counsel and Lopez himself to address the court regarding the

appropriate sentence. The district court then noted that Lopez began his

supervised release in October 2010, but by 2011 was already involved in a drug

transaction, had failed to submittwo urine samples to his probation officer, and

had failed to notify his probation officer of a change in his employment. In light

of these facts, the district court determined that the policy statement range

was inadequate to address Lopez’s conduct, although the statutory maximum

was too high. The district court concluded that a sentence of 36 months of

imprisonment was “necessary to adequately and appropriately address the [§

3553(a)] factors the Court should consider in a revocation sentencing context.”

The district court’s explanation of Lopez’s sentence indicates that the district

court considered the policy statement range, the specific facts of Lopez’s

situation, and Lopez’s argument in favor of a lower sentence. As such, the

explanation was adequate under Rita, 551 U.S. at 356. The judgment of the

district court is AFFIRMED.

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