IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60753

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

WILBERT CONCHO, 

Defendant-Appellant 

Appeal from the United States District Court 

for the Southern District of Mississippi 

USDC No. 4:06-CR-17-3 

Before JONES, WIENER, and CLEMENT, Circuit Judges. 

PER CURIAM:*

 Defendant-Appellant Wilbert Concho appeals the above-guidelines 

sentence imposed by the district court following revocation of his fourth term 

of supervised release. Concho contends that the sentence was procedurally 

unreasonable because the district court failed to adequately explain the 

reasons for imposing the above-guidelines sentence, and substantively 

 

* 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

May 2, 2017

Lyle W. Cayce

Clerk

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No. 16-60753

2 

unreasonable because the sentence did not adequately reflect the facts of the 

revocation and Concho’s personal history and characteristics. 

We “review a sentence imposed on revocation of supervised release under 

a plainly unreasonable standard, in a two-step process,” first “ensur[ing] that 

the district court committed no significant procedural error, such as . . . failing 

to adequately explain the chosen sentence, including failing to explain a 

deviation from the Guidelines range.” United States v. Warren, 720 F.3d 321, 

326 (5th Cir. 2013) (internal quotation marks and citation omitted). If we 

conclude that there was no procedural error, we then determine whether the 

sentence was substantively unreasonable under an abuse of discretion 

standard. Id. at 326, 332.

Concho has not shown procedural error. The district court did sentence 

Concho above the four to 10 month guidelines range, but the 24-month 

sentence was well within the statutory maximum of 36 months. When 

imposing sentence, the district court explained that it was justified based on 

Concho’s prior pattern of failing to report to the Probation Officer and 

absconding while on supervised release. Concho cites nothing to support his 

argument that this was an inadequate explanation, and we have found no 

procedural error in similar situations. See, e.g., United States v. Rice, 487 F. 

App’x 182, 182-83 (5th Cir. 2011).1

 Neither has Concho demonstrated that his sentence was substantively 

unreasonable. The district court’s determination is entitled to deference. 

See United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). The 24-month 

sentence Concho received on revocation was not greater than the term

authorized by statute and, as such, was “clearly legal.” United States v. Pena, 

 

1 Although an unpublished opinion issued after January 1, 1996, is not controlling 

precedent, it may be considered as persuasive authority. See Ballard v. Burton, 444 F.3d 

391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

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3 

125 F.3d 285, 288 (5th Cir. 1997). We have routinely upheld sentences on 

revocation greater than the advisory policy range but within the statutory 

maximum. See Rice, 487 F. App’x at 183 (affirming a 24-month sentence that 

was above the guidelines range of five to 11 months); United States v. Jones, 

182 F. App’x 343, 344 (5th Cir. 2006) (affirming a 24-month sentence that was 

above the guidelines range of five to 11 months). 

 AFFIRMED. 

 Case: 16-60753 Document: 00513975944 Page: 3 Date Filed: 05/02/2017