### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 b ased 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 s entenced to two years impr i s o nment and three years of supervised release. After being U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 12, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5th Cir. R. 47. 5, the court has d eterm ined that this op i n i o n s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5th Cir. R. 47. 5. 4. Case: 12-20616 Document: 00512337628 Page: 1 Date Filed: 08/12/2013N o. 12-20616

deported, Cruz a g a in reentered the country illegally and subsequently committed a Class A misdemeanor in Harris Cou n t y . T his misdemeanor violated his release terms and the federal government asked the district co u r t for revocation of the supervised release. During the s entencing hearing, t he 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 h im for illegal reentry, I don’t think that there’s any other choice but that I give him t he high end of the guidelines range.” Later the judge stated, “[T]he governmen t ’ s not going to do anything about the fact that he illegally reentered the U nited States. S o . . . the only t hing I can do is just give him s ome t ime in jail, he’ll t hink, well, maybe I won’t come back again, because

. . . maybe they’d find me again and then I would be p r osecuted.” The c ourt then

s e n t e n c e d Cruz to t he Guideline maximum of 14 months, stating that such a sentence would address the “objectives of punishment, i ncapacitation, and deterrence in accord a n c e with United States Sentencing Guidelines Section 3553(c).” Cruz timely appealed. DISCUSSION Sentences imposed upon revocation of supervised release are r eviewed under the “plainly unreasonable” sta n d a r d

. U nited States v. Miller , 634 F.3d 841, 843 (5th Cir. 2011). T his court will f irst assess whether the district court committed procedural error and then consider “the substantive reasonableness of t he sentence under an abuse-of-discretion standard. If a se n t e n c e is unreasonable, t hen [the c ourt] consider[s] whether the error was o bvious 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 hist o r y and characteristics of the d efendant, § 3553(a)(1), and deterrence, § 3553(a)(2)(B), rather than pu n i shment. M i ller , 634 F.3d at 844. App e llant charges that the district court i mposed a plainly unreasonable

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s e ntence by adopting a t op-of-the-range senten c e i n r e s p o n s e t o th e go v e r n m e nt ’ s failure t o prosecute for i llegal reentry. He also claims tha t the court violated Miller by relying on punishment as a factor in setting the r evocation sentence. See 18 U.S.C. § 3583(e); Miller , 634 F.3d at 844. 1 App e l l a n t’s claims fail for two reasons. First, there is no indication the sentence was a retaliation for the lack of i llegal reentry prosecution. Second, and relatedly, though the c ourt perfunctorily listed punishment as a sentencing factor near the end of the hearing, there is no evidence to show it was actually

a m otivating factor in the o utcome. In this case, Cruz’s long history of recidivism and his apparent propensity to illeg a l l y enter the United States were both appropriate considerations and adequate j ustifications for t he sentence. The court’s focus o n deterrence defeats Appellant’s arguments and s hows that the within-Guidelines sentence was not plainly unreasonable. It is of n o c o n s e q uence that the court referenced the government’s nonprosecution of t he illegal reentry

. Even though the comments coincide with a d e c i s i o n t o employ a t op-of-the-Guidelines sentence, only one rationale is offere d : “ So

. . . the only thing I can do is just give him some time in j ail, he’ll t h ink, well, maybe I won’t come back again, because

. . . maybe they’d f ind me again and then I would be prosecuted.” Upon l ea r n i n g there would be no additional jail time f rom an illegal r eentry prosecution that might hel p dissuade Cruz from repeating his actio n s , the court reasonably chose to provide Cruz with the longest available opportunity for reflection on t his point. P re v e n tion of subsequent lawbreaking i s a legitimate objective and it is s purious to say that

1 The actual objection at t h e h e a r i n g was that ( 1) the s entence w as greater than neces s ary to achieve the s entencing goals ; ( 2) it f ocus ed too m uch on d eterren c e ; and ( 3) it relied on the governm ent’s f ailure to p ros ecute Cruz f or illegal reentry. N o objection w as m ad e at that tim e to p unis hm ent being cons id ered as a f actor; this triggers p lain error review

. B e c a us e it is more p laus ible that the court’s d ecis ion w as bas ed on d eterrence than p unis hm ent, the error is certainly not p lain. See U ni ted Sta tes v . H

e r n a n d ez - M

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

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the 1 4-month sentence focused too much on deterrence. Far from being

u n r e asonable, t he court’s w ords reveal a clear desire to deter future actio n rather than a punitive focus on the defendant deserving the sentence. CONCLUSION For the foregoing reasons, the judgment of t he distr i c t c o u rt is AFFIRMED.

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