### 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 a sserts that the district court failed to explain his
sentence adequately , failed to con sider the relevant 18 U.S.C. § 3553(a) factors, including the applicable guideline range, and selected his sentence bas ed on clearly erroneous facts. Givens further contends that his sentence is

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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

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

### FILED January 2, 2019

Lyle W. Cayce Clerk Case: 18-30594 Document: 00514779279 Page: 1 Date Filed: 01/02/2019No. 18

- 30594

2 substantively unreasonable because the district court improp e rly 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 s entencing 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 f irst “‘ensure that the district
court com mitted 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 Guid elines 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, w e 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 “understoo d the guidel ines 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. ” Ki ppers , 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 distric t court erred. See Warren , 720 F.3d at 331

. Case: 18-30594 Document: 00514779279 Page: 2 Date Filed: 01/02/2019No. 18

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3 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 fo r a factor that should have received significan t weight, gave significant weight to an irrele vant or improper factor, or made a clear error of judgment in balancing the sentencing factors. Warren , 720 F.3d a t 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 se nt ence on the factors liste d 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 co

defendant 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 balanc ing of the § Case: 18-30594 Document: 00514779279 Page: 3 Date Filed: 01/02/2019No. 18

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4 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 statu tory maximum.” Warren , 720 F.3d at 332 (internal quotation marks and citation omitted) ; see also United States v. Fuentes , 906 F.3d 322 , 3 2 4

- 2 7 (5th Cir. 2018)

. Givens has not shown that his revocation sentence is plainly unreasonable. See Miller , 634 F.3d at 843. T he judgment of the district court is therefore AFFIRMED. Case: 18-30594 Document: 00514779279 Page: 4 Date Filed: 01/02/2019