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not be published and is not precedent except under the limited circumstances set forth in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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-11175

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOHN PAUL JIMENEZ

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:06-CR-027-ALL

Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant John Paul Jimenez appeals the 36-month sentence

he received following revocation of his supervised release. He contends that the

district court miscalculated his sentence because it erroneously determined his

guideline range to be 12 to 18 months rather than 6 to 12 months. 

I. Facts and Proceedings

Jimenez pleaded guilty to possession of 178 kilograms of marijuana with

intent to distribute in 2002 and was sentenced to 50 months in prison and four

United States Court of Appeals

Fifth Circuit

F I L E D

February 8, 2010

Charles R. Fulbruge III

Clerk

Case: 08-11175 Document: 00511022747 Page: 1 Date Filed: 02/08/2010
 Jimenez had previously violated the terms of his release in 2006 by testing positive 1

to cocaine; rather than revoking his release, the district court required him to reside in a

community correction facility for 180 days and referred him to a drug treatment program. 

In December 2006, he was released from the program.

years of supervised release. While under supervised release, Jimenez admitted

to his probation officer that he had used cocaine in March 2007, and the

government moved to revoke his release and secured a warrant for his arrest.1

Jimenez absconded from supervision and was arrested 18 months later, in

October 2008.

In the Violation Report, the probation officer stated that Jimenez had

committed a Grade C violation and calculated his criminal history category

(“CHC”) as IV. The Report incorrectly noted, however, that the imprisonment

range for Grade C, CHC IV under United States Sentencing Guidelines

(“USSG”) § 7B1.4(a) is 12 to 18 months rather than the correct range of 6 to 12

months. After determining that Jimenez had committed a Grade C violation and

that he had a CHC of IV, the district court sentenced Jimenez to 36 months in

prison, justifying the sentence by noting that Jimenez had absconded from

supervision for 18 months and that the sentence would afford Jimenez an

opportunity to participate in a drug treatment program. Jimenez timely

appealed.

II. Analysis

Jimenez contends that the 36 month sentence is plainly unreasonable

because the district court was required to consider the correct guideline range.

He argues that, even though the court departed upward, there is a reasonable

probability that he would have received a lesser sentence if the court had

considered the correct sentencing range. The government responds that Jimenez

could have been found to have committed a Grade B violation (the guideline

range for which is 12 to 18 months), but that, in any event, Jimenez cannot

Case: 08-11175 Document: 00511022747 Page: 2 Date Filed: 02/08/2010
United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). 2

United States v. Olano, 507 U.S. 725, 732-37 (1993). 3

United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005). 4

See 18 U.S.C. § 3583(e)(3). 5

United States v. Mathena, 23 F.3d 87, 90-93 (5th Cir. 1994). 6

 21 U.S.C. § 841(b)(1)(B)(vii). 7

 18 U.S.C. § 3559(a)(2). 8

prove that his sentence is unreasonable.

As Jimenez did not bring to the district court’s attention the asserted error

in the calculation of his term of imprisonment, we review his claim for plain

error. To establish plain error, the defendant must show (1) an error (2) that 2

is plain, (3) that affects his substantial rights, and that (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings. To show that an 3

error affected his substantial rights, the defendant must show “a reasonable

probability” that but for the error he would have received a different sentence.4

A district court may impose any sentence on revocation of supervision that falls

within the statutory maximum term allowed for the revocation sentence, but 5

must do so in light of the factors enumerated in 18 U.S.C. § 3553(a) and the

policy statements of Chapter 7 of the USSG.6

Even assuming that the district court erroneously determined the

guideline range for Jimenez’s term of imprisonment to be 12 to 18 months

instead of 6 to 12 months, Jimenez cannot show that his substantial rights have

been affected. Jimenez’s original conviction for possession with intent to

distribute marijuana carried a statutory maximum term of imprisonment of 40

years. This offense is therefore a Class B felony, and the maximum term of 7 8

Case: 08-11175 Document: 00511022747 Page: 3 Date Filed: 02/08/2010
 18 U.S.C. § 3583(e)(3). 9

See, e.g., United States v. Gonzalez, 253 Fed. App’x 387, 388 (5th Cir. 2007)

10

(collecting cases).

imprisonment on revocation of supervised release is 36 months. By itself, the 9

district court’s erroneous selection of the incorrect guideline range is not enough

to demonstrate that the “substantial rights” prong of the plain error test is

satisfied. Although the 36 month prison term imposed by the district court 10

exceeded both the 6 to 12 month and 12 to18 month guideline ranges, the district

court supported its upward departure from the guidelines by noting Jimenez’s

absconding from justice for 18 months and the drug treatment opportunity that

a 36 month term would afford. Jimenez has failed to demonstrate that there is

a “reasonable probability” he would have received a different term of

imprisonment but for the guideline calculation error.

AFFIRMED. 

Case: 08-11175 Document: 00511022747 Page: 4 Date Filed: 02/08/2010