IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-20616

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JOHNNY SANCHEZ CRUZ, also known as Juan Sanchez, 

also known as Johnny Sanchez, also known as Juan Ray Cruz, 

also known as Johnny Ray Sanchez, also known as Johnny Sanchez-Cruz,

also known as Juan Edmondo Cruz, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CR-411

Before DAVIS, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Johnny Sanchez Cruz appeals his sentence based on revocation of the

release terms from a prior conviction. Finding no error, we AFFIRM.

BACKGROUND

Upon pleading guilty to illegal reentry in 2010, Appellant was sentenced

to two years imprisonment and three years of supervised release. After being

United States Court of Appeals

Fifth Circuit

F I L E D

August 12, 2013

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. 12-20616

deported, Cruz again reentered the country illegally and subsequently

committed a Class A misdemeanor in Harris County. This misdemeanor

violated his release terms and the federal government asked the district court

for revocation of the supervised release.

During the sentencing hearing, the fact arose that Cruz was not being

prosecuted for illegal reentry. At one point the court said, “[I]f the government’s

not going to prosecute him for illegal reentry, I don’t think that there’s any other

choice but that I give him the high end of the guidelines range.” Later the judge

stated, “[T]he government’s not going to do anything about the fact that he

illegally reentered the United States. So . . . the only thing I can do is just give

him some time in jail, he’ll think, well, maybe I won’t come back again, because

. . . maybe they’d find me again and then I would be prosecuted.” The court then

sentenced Cruz to the Guideline maximum of 14 months, stating that such a

sentence would address the “objectives of punishment, incapacitation, and

deterrence in accordance with United States Sentencing Guidelines Section

3553(c).” Cruz timely appealed.

DISCUSSION

Sentences imposed upon revocation of supervised release are reviewed

under the “plainly unreasonable” standard. United States v. Miller, 634 F.3d

841, 843 (5th Cir. 2011). This court will first assess whether the district court

committed procedural error and then consider “the substantive reasonableness

of the sentence under an abuse-of-discretion standard. If a sentence is

unreasonable, then [the court] consider[s] whether the error was obvious under

existing law.” Id. (internal quotation marks and citation omitted).

In revoking a supervised release, the district court must focus on factors

such as the history and characteristics of the defendant, § 3553(a)(1), and

deterrence, § 3553(a)(2)(B), rather than punishment. Miller, 634 F.3d at 844. 

Appellant charges that the district court imposed a plainly unreasonable

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sentence by adopting a top-of-the-range sentence in response to the government’s

failure to prosecute for illegal reentry. He also claims that the court violated

Miller by relying on punishment as a factor in setting the revocation sentence. 

See 18 U.S.C. § 3583(e); Miller, 634 F.3d at 844.1

Appellant’s claims fail for two reasons. First, there is no indication the

sentence was a retaliation for the lack of illegal reentry prosecution. Second,

and relatedly, though the court perfunctorily listed punishment as a sentencing

factor near the end of the hearing, there is no evidence to show it was actually

a motivating factor in the outcome. In this case, Cruz’s long history of recidivism

and his apparent propensity to illegally enter the United States were both

appropriate considerations and adequate justifications for the sentence. The

court’s focus on deterrence defeats Appellant’s arguments and shows that the

within-Guidelines sentence was not plainly unreasonable.

It is of no consequence that the court referenced the government’s nonprosecution of the illegal reentry. Even though the comments coincide with a

decision to employ a top-of-the-Guidelines sentence, only one rationale is offered:

“ So . . . the only thing I can do is just give him some time in jail, he’ll think, well,

maybe I won’t come back again, because . . . maybe they’d find me again and

then I would be prosecuted.” Upon learning there would be no additional jail

time from an illegal reentry prosecution that might help dissuade Cruz from

repeating his actions, the court reasonably chose to provide Cruz with the

longest available opportunity for reflection on this point. Prevention of

subsequent lawbreaking is a legitimate objective and it is spurious to say that

1 The actual objection at the hearing was that (1) the sentence was greater than

necessary to achieve the sentencing goals; (2) it focused too much on deterrence; and (3) it

relied on the government’s failure to prosecute Cruz for illegal reentry. No objection was made

at that time to punishment being considered as a factor; this triggers plain error review.

Because it is more plausible that the court’s decision was based on deterrence than

punishment, the error is certainly not plain. See United States v. Hernandez-Martinez,

485 F.3d 270, 274 (5th Cir. 2007).

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the 14-month sentence focused too much on deterrence. Far from being

unreasonable, the court’s words reveal a clear desire to deter future action

rather than a punitive focus on the defendant deserving the sentence.

CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED. 

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