* 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that this opinion should not be published and is not precedent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. 01-10260

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LOUIS FRANCO LERMA,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Northern District of Texas

(1:99-CR-62-1)

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

August 20, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. 

PER CURIAM:*

Defendant-Appellant Louis Franco Lerma appeals his 15-month

sentence following the revocation of his supervised-release term.

Lerma contends that the sentence imposed in connection with his

revocation is plainly unreasonable because (1) it is largely based

on his state court conviction for family violence assault, and (2)

that conviction was subsequently set aside by the granting of his

motion for new trial. Lerma asserts that the district court also

committed reversible error at sentencing by failing to consider the

applicable sentencing guidelines and policy statements in
2

determining his sentence which, he insists, was the product of an

upward departure from the guidelines.

We will uphold the results of a sentencing following the

revocation of supervised release “unless it is in violation of law

or is plainly unreasonable.” See United States v. Mathena, 23 F.3d

87, 89 (5th Cir. 1994). In determining whether a sentence is

plainly unreasonable or is in violation of law, we review the

district court’s interpretation of sentencing statutes de novo.

Id.

The fact that Lerma’s state conviction for family violence

assault was set aside does not automatically invalidate the

revocation of Lerma’s supervised release. After receiving evidence

at the revocation hearing regarding, inter alia, facts about

Lerma’s assault on his 15-year-old daughter, the district court

found by a preponderance of the evidence that Lerma had violated

his supervised release. Lerma fails to accept the distinction

between a revocation of supervised release based on a conviction -

qua conviction and a revocation based on the facts underlying a

conviction. We conclude, irrespective of the state’s subsequent

setting aside of Lerma’s conviction, that the district court had

before it a preponderance of the evidence needed to support its

finding of a violation of the terms of his supervised release.

United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996). 

In sentencing a defendant following the revocation of his

supervised release, a district court is required to consider, but

is not bound by, the policy statements contained in Chapter 7 of
3

the Sentencing Guidelines. See Mathena, 23 F.3d at 93. The record

supports the implication that the district court considered, yet

rejected, the five-to-eleven month imprisonment range suggested by

the policy statements. 

Lerma’s argument that his sentence represents an upward

departure from the Guidelines fails. A sentence that diverges from

advisory policy statements is not a departure. Mathena, 23 F.3d at

94 n.13. In light of the number and nature of the release terms

violated by Lerma (missing several counseling sessions and drug

screenings and assaulting his daughter), the district court

obviously found the need to impose a sentence that would serve as

a deterrent to further noncompliant and assaultive behavior by

Lerma and as punishment for his actions as well. The district

court was within its discretion in considering such factors, so the

sentence cannot be said to be plainly unreasonable. See 18 U.S.C.

§§ 3583(e), § 3552(a). 

In sum, the district court did not err in sentencing Lerma to

15 months’ imprisonment following the revocation of his supervised

release. The judgment of the district court is, therefore, 

AFFIRMED.