IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50615

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAUL VALENCIA-MAZARIEGOS, also known as Pedro Rene Hernandez,

Defendant-Appellant

- - - - - - - - - - - - - - - - - - - - - - - - - - -

consolidated with:

No. 09-50625

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAUL VALENCIA-MAZARIEGOS,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 1:08-CR-217

USDC No. 1:09-CR-228

United States Court of Appeals

Fifth Circuit

F I L E D

May 26, 2010

Lyle W. Cayce

Clerk
No. 09-50615

c/w No. 09-50625

* 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.

1 We have yet to address whether sentences imposed upon revocation of supervised

release are to be reviewed under the “unreasonableness” standard of United States v. Booker,

540 U.S. 220, 261 (2005). Prior to Booker, we applied a “plainly unreasonable” standard. See

United States v. Hinson, 429 F.3d 114. 119–20 (5th Cir. 2005). We need not decide the correct

standard today, as Valencia’s sentence is appropriate under either standard. Id. at 119.

2

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Raul Valencia-Mazariegos (Valencia) appeals the 60-month sentence he

received on revocation of his supervised release, following his guilty-plea

convictions for: (1) being an illegal alien in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g)(5)(A); and (2) illegal reentry into

the United States, in violation of 8 U.S.C. § 1326. Although he noticed an appeal

of both those convictions and the resulting concurrent 120-month sentences, as

well as an appeal from the revocation sentence, Valencia failed to brief any

argument regarding the underlying convictions and sentences. Thus, he has

abandoned those issues. See United States v. Martinez, 263 F.3d 436, 438 (5th

Cir. 2001).

Valencia argues that the consecutive 60-month revocation sentence was

unreasonable and/or plainly unreasonable1 because it was unduly punitive, given

that he had already received a harsh 10-year sentence on the underlying

violations based on his criminal past and other factors cited by the district court.

He urges that those same factors cannot support an additional five-year

revocation sentence because they had already been accounted for sufficiently.

Alternatively, Valencia argues that, if a consecutive revocation sentence was

warranted,the court should have restricted the sentence to the Guidelines range

of 21 to 27 months.
No. 09-50615

c/w No. 09-50625

3

The district court’s decision to run the revocation sentence consecutive to

the sentence on the underlying charges was authorized by statute and is

preferred under the Guidelines. See 18 U.S.C. § 3584; U.S.S.G. § 7B1.3(f) &

comment. (n.4.). Additionally, both the sentencing transcript and the written

statement of reasons reveal that the district court considered the 18 U.S.C.

§ 3553 factors when imposing Valencia’s revocation sentence. Specifically, the

court found that a significant sentence beyond that imposed on the underlying

charges was necessary to reflect the seriousness of Valencia’s criminal past and

future dangerousness, as well as to promote respect for the law and provide

adequate deterrence, particularly given his nearly 30-year criminal career of

drug-trafficking, violence, and disregard for the laws of the United States.

Because the 60-month sentence Valencia received on revocation was not

greater than what is authorized by statute, it is “thus clearly legal.” United

States v. Pena, 125 F.3d 285, 288 (5th Cir. 1997). Moreover, this court has

“routinely upheld release revocation sentences in excess of the advisory range

but within the statutory maximum” as satisfying both the plainly unreasonable

and unreasonableness standards. United States v. Jones, 182 F. App’x 343, 344

(5th Cir. 2006) (per curiam). Accordingly, Valencia’s revocation sentence is

acceptable under the “plainly unreasonable” and Booker “unreasonableness”

standards. See Hinson, 429 F.3d at 118–19.

AFFIRMED.