### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-30336 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ROBERT HAYES, Defendant-Appellant

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:02-CR-83-1

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges. PER CURIAM: * Robert Hayes appeals the sentence imposed after revocation of supervised release. His 24-month sentence was the s t atutory m axi mu m s e ntence which was below the recommended guidelines range of 33-41 months. Hayes contends that the sentence was unreasonable because the court did not select a se nt e n c e that properly balanced the objectives of punishment and rehabilitation. He argues that imposition of the stat utory maximum sentence did not serve the p u r p o se of rehabilitation and shows that the court did not U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 3, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-30336 Document: 00511654027 Page: 1 Date Filed: 11/03/2011No. 11-30336

adequately consider mitigating factors (e.g., his health problems or his success in completing rehabilitative programs). Hayes further asserts that the district court wrongly based the sentence on “punishment,” a factor that is listed in 18 U.S.C. § 3553(a)(2), and barred from consideration by 18 U.S.C. § 3583(e) under United States v. Miller , 634 F.3d 841, 844 (5th Cir), petition for cert. filed (May 27, 2011) (No. 10-10784). Because Hayes only offered a general objection in the district court to the reasonableness of his sentence and did n o t object on the specific grounds he raises on appeal, we review his arguments for plain error. United States v. Neal , 578 F.3d 270, 272 (5th Cir. 2009); see also United States

v. LeBoe uf

, 10-10849, 2011 WL 3279203, at * 2 (5th Cir. Aug. 1, 2011)(unpublished)(n o ti n g that a general objection to the reasonableness of a revocation sentence does not preserve th e argument that the district court considered an improper sentencing factor). Hayes’s c ontention that the district court improperly based his sentence

on “punishment” is unavailing. The record supports that revocation of Hayes’s supervised release w a s mandated by § 3583(g) because he violated an express condition of supervised release by being convicte d in Louisiana state court of possession of heroin with intent to distribute, i.e., a drug posse ssion crime
p u ni s hable by more than one year. See § 3583(g). Section 3583(g) does no t expressly invoke the sentencing factors of § 3553(a), or the limits imposed by the first clause of §3583(e). See § 3583(g); United States v. Giddings , 37 F.3d 1091, 1095 (5th Cir. 1994) (noting that a court need not c o n s i d e r § 3553(a) when revocation is mandated by § 3583(g)). Thus, Hayes fails to show that it is “clear

or obvious” or “obvious under existing law” that a sentence imposed when revocation is mandatory must be limite d b y § 3 5 83(e). Cf. United States v. La r i s o n , 432 F.3d 921, 923 (8th Cir. 2006) (holding that the district court’s sentencing decision was not constrained by the factors specifically enunciated in § 3583(e) where revocation was mandated by § 3583(g)).

2 Case: 11-30336 Document: 00511654027 Page: 2 Date Filed: 11/03/2011No. 11-30336

Hayes’s assertion that his sentence did not represent a proper evaluation of various competing i nterests and did not properly account for mitigating factors is without merit. Th e record reflects that the court considered the competing sentencing objectives and concluded that a 24-month sentence appropriately balanced those factors. The court acknowledged Hayes’s serious health problems and specifically considered whether Hayes’s previous efforts at rehabilitation warranted a lesser sentence. However, the court concluded that Hayes’s history and characteristics outweighed his r e h abilitative efforts and justified the sentence imposed. To the extent that Hayes disagrees with the weight that the court gave to the factors argued, his claim is unavailing; the district court was permitted to use its judgment to weigh the relative importance of each factor, and we may not reweigh those factors. See Gall v. United States , 552 U.S. 38, 51 (2007). The judgment of the district court is therefore AFFIRMED.

3 Case: 11-30336 Document: 00511654027 Page: 3 Date Filed: 11/03/2011