IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40183

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BENITO URBINA,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 2:07-CR-450-1

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Benito Urbina appeals from his sentence following 

the revocation of his term of supervised release. His only contention is that 

the district court impermissibly considered the need to promote respect for the 

law and the need for just punishment when imposing sentence.

Because Urbina failed to object in the district court, our review is for 

plain error. United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). To 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 8, 2014

Lyle W. Cayce

Clerk

 

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No. 13-40183

prevail under the plain error standard, Urbina “must show an error that is 

clear or obvious and affects his substantial rights.” Id. at 260. If he makes 

such a showing, we may exercise our discretion to correct the error, “but only 

if it seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.” Id.

Among the factors a district court should consider when imposing 

sentences generally is “the need for the sentence imposed . . . to reflect the 

seriousness of the offense, to promote respect for the law, and to provide just 

punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). The factors in 

subsection (a)(2)(A), however, are not listed among the factors that a district 

court should consider when deciding whether to revoke a term of supervised 

release and impose sentence pursuant to 18 U.S.C. § 3583(e). See § 3583(e). 

“[I]t is improper for a district court to rely on § 3553(a)(2)(A) for the 

modification or revocation of a supervised release term.” United States v. 

Miller, 634 F.3d 841, 844 (5th Cir. 2011). 

In Miller, however, we addressed a revocation and sentencing pursuant 

to § 3583(e). Miller, 634 F.3d at 844. Urbina’s revocation and sentencing was 

based in part on an allegation that he used and possessed cocaine. Revocation 

of release and imposition of a sentence of imprisonment were mandatory 

pursuant to § 3583(g), which does not list or omit any of the § 3553(a) 

sentencing factors. See § 3583(g). We have not found clear or obvious error 

when a district court has considered the factors set out at § 3553(a)(2)(A) in 

revocations that are governed in whole or in part by § 3583(g). United States 

v. Holmes, 473 F. App’x 400, 401 (5th Cir. 2012); United States v. Wilson, 460 

F. App’x 351, 352 (5th Cir.), cert. denied, 132 S. Ct. 2759 (2012); United States 

v. Flores-Gaytan, ___ F. App’x ___, No. 12-41398, 2013 WL 5670855, at *1 (5th 

Cir. Oct. 18, 2013) (unpublished); United States v. Davis, ___ F. App’x ___, No. 

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10-11152, 2013 WL 3227275, at *2-*3 (5th Cir. May 17, 2013) (unpublished), 

cert. denied, 134 S. Ct. 349 (2013). Although the cases on point are 

unpublished, they are “highly persuasive because [this court] explicitly 

rejected the identical argument that [Urbina] advances here.” United States 

v. Pino Gonzalez, 636 F.3d 157, 160 (5th Cir. 2011). 

AFFIRMED.

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