IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40812

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BELMA LINDA LUCERO,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:06-CR-740-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Belma Linda Lucero was convicted of aiding and abetting the

transportation of an unlawful alien and was sentenced on May 31, 2007, to 33

months of imprisonment to be followed by a 3-year term of supervised release.

On December 9, 2009, Lucero’s supervised release was revoked, and she was

sentenced to 90 days in prison to be followed by another term of supervised

release. Lucero was subsequently charged with violating the conditions of this

second term of supervised release by committing the criminal offenses of

United States Court of Appeals

Fifth Circuit

F I L E D

May 23, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-40812

criminal conspiracy, making terroristic threats, and being a felon in possession

of a firearm. Lucero initially pleaded not true to the charge involving a criminal

conspiracy. Over a Confrontation-Clause objection, the district court admitted

a police report and search warrant into evidence. Lucero subsequently pleaded

true to all of the charges that she violated the terms of her supervised release.

The district court revoked Lucero’s supervised release and sentenced her to a 21-

month term of imprisonment and 24 months of supervised release.

Lucero argues that the district court violated her rights under the

Confrontation Clause when it admitted hearsay evidence to determine her

sentence. There is no Confrontation Clause violation when hearsay testimony

is used for sentencing purposes. See United States v. Beydoun, 469 F.3d 102, 108

(5th Cir. 2006). As Lucero pleaded true to all of the charges and does not

challenge the revocation, this issue has no merit.

Lucero argues that the district court erred in imposing sentence because

the district court did not calculate the advisory guidelines range. Under Gall v.

United States, 552 U.S. 38, 51 (2007), “failing to calculate (or improperly

calculating) the Guidelines range” is a significant procedural error. When, as in

this case, a defendant fails to object to errors in the sentencing procedures, they

are reviewed for plain error only. See United States v. Whitelaw, 580 F.3d 256,

259 (5th Cir. 2009). To show plain error, Lucero must show a forfeited error that

is clear or obvious and that affects her substantial rights. Puckett v. United

States,129 S. Ct. 1423, 1429 (2009). Notwithstanding any procedural error,

Lucero is not entitled to relief because she cannot show that the error affected

her substantial rights because she has not shown even the possibility of a

different sentence. See United States v. Blocker, 612 F.3d 413, 416 (5th Cir.),

cert. denied, 131 S. Ct. 623 (2010).

Lucero argues, and the Government concedes, that the district court erred

in imposing a 24-month term of supervised release. Although no objection was

raised in the district court, this court reviews de novo whether a revocation

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No. 10-40812

sentence is in excess of the statutory maximum. See United States v. Hampton,

633 F.3d 334, 336 (5th Cir. 2011). The maximum term of supervised release

available upon revocation is the term of supervised release authorized for the

defendant’s original offense reduced by the aggregate term of imprisonment

imposed on revocation. See § 3583(h); United States v. Vera, 542 F.3d 457, 459

(5th Cir. 2008); Hampton, 633 F.3d at 339. The imposition of a term of

supervised release of 24 months exceeded the maximum allowed by statute. See

§ 3583(h). The judgment of the district court should be vacated and the matter

remanded for resentencing in accordance with § 3583(h).

VACATED and REMANDED.

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Case: 10-40812 Document: 00511485582 Page: 3 Date Filed: 05/23/2011