*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opinion should not be published and is not precedent except under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

June 1, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-51105

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO ESQUIVEL, JR.,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-01-CR-377-ALL

 

Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

Antonio Esquivel, Jr. has appealed the thirty-six-month term

of imprisonment imposed by the district court upon revocation of

Esquivel’s supervised release. We will uphold the sentence “unless

it is in violation of law or is plainly unreasonable.” United

States v. Stiefel, 207 F.3d 256, 259 (5th Cir. 2000) (citation and
2

internal quotation marks omitted). We review the district court’s

factual findings for clear error. See United States v. AlanizAlaniz, 38 F.3d 788, 790 (5th Cir. 1994). 

Esquivel contends that the sentence was unreasonably severe

and that the district court did not state that it had considered

the factors in 18 U.S.C. § 3553 before sentencing him. Esquivel’s

original conviction was a Class A felony. See 21 U.S.C. §§

841(a)(1), 841(b)(1)(A) (1995); 18 U.S.C. § 3559(a)(1). The

district court may impose a term of imprisonment of not more than

five years upon revocation of supervised release from a Class A

felony. 18 U.S.C. § 3583(e)(3). The thirty-six-month term of

imprisonment did not exceed the statutory maximum.

In arguing that the sentence was plainly unreasonable,

Esquivel contends that the district court erred in finding that he

had violated a condition of his supervised release by committing a

law violation-theft. The theft was one of four violations found by

the district court. Even if we were to conclude that the district

court erred in finding that Esquivel had committed the theft, we

would not necessarily conclude also that the sentence for the other

three violations was plainly unreasonable. In any event, the

district court’s finding that Esquivel had committed the theft was

not clearly erroneous. See Alaniz-Alaniz, 38 F.3d at 790. Because

the statutory maximum was two years longer than the sentence

imposed and because the district court arguably could have imposed
1And, appellant does not question the five to eleven month

period, but rather relies on it, and points out that it is

applicable to a Grade C violation and Criminal History Category of

III. 

3

a more severe sentence, the sentence cannot be considered plainly

unreasonable.

We review Esquivel’s contention that the district court failed

to consider the factors in 18 U.S.C. § 3553(a) only for plain error

because Esquivel did not raise any objection in this respect in the

district court. See United States v. Everist, ___ F.3d ___, slip

op. 2164 (No. 03-20059, 5th Cir. April 27, 2004); United States v.

Londono, 285 F.3d 348, 355 (5th Cir. 2002); United States v.

Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001); United States v.

Izaquirre-Losoya, 219 F.3d 437, 441 (5th Cir. 2000). Implicit

consideration of the section 3553(a) factors suffices. Gonzalez at

929-30. It can be inferred from the district court’s comments at

the revocation hearing that the district court considered most of

the factors listed in section 3553(a) in determining the sentence.

The record also reflects that the district court was aware of the

applicable five to eleven month confinement period reflected in the

policy statements contained in Chapter 7 of the United States

Sentencing Commission Guidelines Manual. See U.S.S.G. §§ 7B1.1(a),

7B1.4. See also 18 U.S.C. §§ 3553(a)(4)(B), (5), and 3583(e).1 We

note also that the policy statements are advisory only and the

district court is not bound to follow them. United States v.
4

Mathena, 23 F.3d 87, 93 (5th Cir. 1994). Even if the district

court erred and the error was plain, reversal would not be called

for under clear error review because the sentence imposed did not

exceed the statutory maximum, prejudice to Esquivel’s substantial

rights is highly doubtful and it is plain that if there were error

it did not seriously affect the fairness, integrity or public

reputation of judicial proceedings. Gonzalez at 930 n.10. The

district court’s order is

AFFIRMED.