* 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should not be published and is not precedent except under the limited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. 08-40184

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

FERMIN E JIMENEZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:03-CR-153-ALL

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Fermin E. Jimenez, who was convicted of possessing with intent to

distribute more than 500 grams of cocaine, appeals the 12-month sentence

imposed upon revocation of his supervised release. Jimenez argues that the

district court failed to articulate adequate reasons for imposing a sentence that

exceeded the advisory guidelines range of three to nine months. He further

argues that the district court abused its discretion relative to the degree of the

upward departure. 

United States Court of Appeals

Fifth Circuit

F I L E D

November 19, 2008

Charles R. Fulbruge III

Clerk
No. 08-40184

2

Because Jimenez raised no objection in the district court, we review for

plain error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.

2008). To establish plain error, Jimenez must show an error that is clear or

obvious and that affects his substantial rights. See United States v. Baker, 538

F.3d 324, 332 (5th Cir. 2008). If the appellant makes such a showing, this court

has the discretion to correct the error but only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id.

The district court addressed Jimenez at length during the revocation

hearing and discussed such 18 U.S.C. § 3553(a) factors as his numerous

violations of his conditions of release, his need to respect the law, the need for

deterrence, and Jimenez’s need for drug treatment and mental health treatment.

The court further noted to Jimenez that while his revocation sentence exceeded

the policy statement recommendation, it was not as long as it could have been.

Thus, Jimenez has failed to show that the district court plainly erred with

respect to its statement of oral reasons for the upward departure. See United

States v. McKinney, 520 F.3d 425, 427-28 (5th Cir. 2008). 

However,the district court’s written judgment does not indicate its specific

reasons for the upward departure. A written statement of reasons is a

requirement of procedural due process in ordinary probation revocation

hearings. United States v. Kindred, 918 F.2d 485, 488 (5th Cir. 1990). While the

district court’s failure to provide written reasons could constitute an error that

is plain or obvious, Jimenez does not attempt to show that the error affected his

substantial rights. He therefore has not shown that the district court plainly

erred by failing to provide written reasons for the upward departure. See Baker,

538 F.3d at 332. 

As for the degree of the upward departure, Jimenez was sentenced to a

prison term (12 months) that was within the statutory maximum for his

revocation sentence and that was 90 days above the guidelines range of three to

nine months. The record shows that the district court considered § 3553(a)
No. 08-40184

3

factors that supported the degree of the upward departure. Jimenez has not

shown a clear or obvious error. 

The judgment of the district court is AFFIRMED.