United States Court of Appeals

for the Fifth Circuit

No. 21-40079

United States of America, 

Plaintiff—Appellee,

versus

Margarita Escandon, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:19-CR-22-1

Before Southwick, Haynes, and Higginson, Circuit Judges.

Per Curiam:*

Margarita Escandon violated the terms of her supervised release. The 

district court revoked her term of supervised release, imposing a sentence of 

18 months imprisonment. Escandon appeals the imposition of the sentence, 

claiming that the district court plainly erred by failing to consider the 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 14, 2022

Lyle W. Cayce

Clerk

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Sentencing Guidelines. Concluding that Escandon has not met the exacting 

standard of plain error review, we AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

In 2019, Margarita Escandon pled guilty to transporting an alien 

within the United States for private financial gain and was sentenced to seven 

months of imprisonment and three years of supervised release. Her term of 

supervised release began in July 2019. In August 2019, Escandon’s probation 

officer alleged that she violated her conditions by using cocaine and failing to 

report in a timely manner to the probation office upon release from prison.

In November 2019, her probation officer alleged that she failed to attend five 

scheduled counseling sessions and failed to submit to four random drug tests. 

She was counseled for these violations, and no further action was taken. 

In April 2020, though, Escandon’s probation officer filed a petition to 

revoke her supervised release under 28 U.S.C. § 3583(e). The probation 

officer identified Escandon’s previous violations, her failure to report to her 

probation officer on six occasions, and failure to submit timely, truthful and 

complete written reports to her probation officer on five occasions. This 

petition to revoke was superseded by a new petition in August 2020. The 

new petition also alleged that she threw a beer can at her 12-year-old 

daughter, hitting her in the head. The petition alleged that this conduct 

violated the Texas Penal Code section that criminalizes injury to a child. 

Tex. Penal Code § 22.04. 

At the revocation hearing, Escandon pled not true to committing the 

new offense of injury to a child but pled true to the remainder of the 

violations. The district court considered evidence and found that 

Escandon’s conduct violated the injury to a child statute. It also found that 

the rest of the violations occurred. Escandon’s counsel argued that she 

accepted responsibility for her actions and requested that the district court 

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“consider continuing her on supervision.” The district court declined to do 

so. Instead, it revoked Escandon’s term of supervised release and sentenced 

her to 18 months of imprisonment without supervised release. 

At the revocation hearing, neither the parties nor the district court 

mentioned the Sentencing Guidelines or a Guidelines range. The probation 

officer, though, had prepared a Judge’s Sentencing Options Worksheet 

(“JSOW”), which outlined a Guidelines range of 18 to 24 months 

imprisonment in this case. Although this JSOW was not in the district court 

record, the parties agreed to supplement the appellate record with a copy of 

the JSOW. At oral argument, Escandon’s counsel conceded that it had been 

provided to the defense at the time of sentencing. 

Escandon’s counsel did not object to the sentence at the revocation 

hearing. On appeal, Escandon argues the district court imposed a 

procedurally unreasonable sentence by not considering the Sentencing 

Guidelines policy statements governing supervised release violations. 

DISCUSSION

Escandon did not object at sentencing, making our review for plain 

error. United States v. Rivera, 784 F.3d 1012, 1016 (5th Cir. 2015). In order 

to prevail on clear error review, Escandon must first show (1) “an error that 

has not been intentionally relinquished or abandoned”; (2) which is “plain 

— that is to say, clear or obvious”; (3) which “affected [her] substantial 

rights.” Molina-Martinez v. United States, 578 U.S. 189, 194 (2016). If 

Escandon can establish these elements, we then consider whether it “should 

exercise its discretion to correct the forfeited error” and does so “if the error 

‘seriously affects the fairness, integrity or public reputation of judicial 

proceedings.’” Id.(quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

The district court may impose any sentence that falls within the 

appropriate statutory maximum term of imprisonment allowed for the 

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revocation sentence. 18 U.S.C. § 3583(e)(3); United States v. Davis, 602 F.3d 

643, 646 (5th Cir. 2010). The district court, though, “must consider” the 

sentencing factors and policy statements of the Sentencing Guidelines. 

Davis, 602 F.3d at 646. This consideration may be implicit. See United 

States v. Kippers, 685 F.3d 491, 499 (5th Cir. 2012). 

Escandon argues that the district court erred by not considering the 

Sentencing Guidelines policy statements governing supervised release 

violations. Any such error must be “clear or obvious” to merit plain error, 

which means it must not be “subject to reasonable dispute.” Puckett v. 

United States ̧556 U.S. 129, 135 (2009). In this case, both parties were 

provided the JSOW before sentencing. It referred to various section of the 

Guidelines, including commentary, application notes, and other 

considerations. The district court’s sentence was at the low end of the range 

recommended in the JSOW. It seems nearly certain, then, that the district 

court considered the JSOW and the sentencing factors and policy statements 

it referenced. It was Escandon’s burden to show the opposite: that there is 

no reasonable dispute that the district court failed to consider the Guidelines’ 

sentencing factors and policy statements. See id. Consequently, no error that 

is plain has been identified, making it unnecessary to consider the other 

elements of plain error.

AFFIRMED.

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