IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30594

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DORIAN GIVENS, also known as Doe Givens,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:12-CR-259-2

Before SMITH, WIENER, and WILLETT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Dorian Givens appeals the consecutive 36-month 

and two 24-month terms of imprisonment imposed on revocation of his terms 

of supervised release. He asserts that the district court failed to explain his 

sentence adequately, failed to consider the relevant 18 U.S.C. § 3553(a) factors, 

including the applicable guideline range, and selected his sentence based on 

clearly erroneous facts. Givens further contends that his sentence is 

 

* 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 2, 2019

Lyle W. Cayce

Clerk

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No. 18-30594

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substantively unreasonable because the district court improperly considered 

the factors in § 3553(a)(2)(A), failed to account for the Chapter Seven policy 

statements of the U.S. Sentencing Guidelines and the need to avoid 

unwarranted sentence disparities, and made a clear error of judgment in 

balancing the proper sentencing factors.

We review a sentence imposed on revocation of supervised release under 

a “plainly unreasonable” standard, in a two-step process. United States v. 

Miller, 634 F.3d 841, 843 (5th Cir. 2011). We first “‘ensure that the district 

court committed no significant procedural error,’ such as failing to consider the 

§ 3553(a) factors, selecting a sentenced based on clearly erroneous facts, or 

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

a deviation from the Guidelines range.” United States v. Kippers, 685 F.3d 491, 

497 (5th Cir. 2012) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If

we find no procedural error, we next review the substantive reasonableness of 

the sentence imposed. Id. “If we find the sentence unreasonable, we may 

reverse the district court only if we further determine the error was obvious 

under existing law.” United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013) 

(internal quotation marks and citation omitted).

The record reflects that the district court “understood the guidelines 

range[,] . . . considered § 3553(a)’s factors at least implicitly, did not select a 

sentence based on clearly erroneous facts, and did not fail to adequately 

explain his sentence.” Kippers, 685 F.3d at 499. Givens does not point to any 

materially untrue information relied on by the district court; he merely 

disputes the district court’s characterization of his criminal record and 

conduct, which is insufficient to show that the district court erred. See Warren, 

720 F.3d at 331.

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We review the substantive reasonableness of a challenged sentence for 

abuse of discretion. Miller, 634 F.3d at 843. A revocation sentence is 

substantively unreasonable if the district court did not account for a factor that 

should have received significant weight, gave significant weight to an 

irrelevant or improper factor, or made a clear error of judgment in balancing 

the sentencing factors. Warren, 720 F.3d at 332. Further, “because the 

sentence now under review is a revocation sentence, any abuse of discretion 

must also be obvious under existing law.” United States v. Sanchez, 900 F.3d 

678, 685 (5th Cir. 2018) (internal quotation marks and citation omitted). A 

district court may not base a revocation sentence on the factors listed at 

§ 3553(a)(2)(A), and to do so is clear error. United States v. Rivera, 784 F.3d 

1012, 1017-18 (5th Cir. 2015).

The record reflects that the district court implicitly considered the 

Chapter Seven policy statements and found the applicable advisory range 

insufficient. The district court did not expressly state that it considered the 

factors in § 3553(a)(2)(A), and the record does not indicate that the court 

improperly relied on those factors. Unlike the court in Miller, 634 F.3d at 844, 

the district court here did not mention lack of “respect for the law,” and the 

comments made are consistent with the permissible factors of deterrence and 

protection of the public. § 3553(a)(2)(B)-(C); see Sanchez, 900 F.3d at 684. 

Although Givens contends that the disparity between his sentence and that of

a co-defendant who received only 13 months of imprisonment on revocation of 

supervised release is unwarranted, he fails to show that he and that codefendant were similarly situated. See United States v. Guillermo Balleza, 613 

F.3d 432, 435 (5th Cir. 2010). Finally, Givens’s contention that “his limited 

criminal history and lack of violent offenses” warranted a lesser sentence 

amounts to mere disagreement with the district court’s balancing of the § 

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3553(a) factors and thus is insufficient to show that the court made a clear 

error of judgment. See Gall, 552 U.S. at 51. “We have routinely affirmed 

revocation sentences exceeding the advisory range, even where the sentence 

equals the statutory maximum.” Warren, 720 F.3d at 332 (internal quotation 

marks and citation omitted); see also United States v. Fuentes, 906 F.3d 322, 

324-27 (5th Cir. 2018).

Givens has not shown that his revocation sentence is plainly 

unreasonable. See Miller, 634 F.3d at 843. The judgment of the district court 

is therefore AFFIRMED.

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