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

No. 12-20362

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. ALAN DURAND JONES, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:11-CR-834-1

Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM: * Al a n Jones challenges the 18-month sentence he received upon t h e revocation of h i s supervised r elease. He contends the district court reversibly erred by failing to provide a sufficient explanation for the revocation sentence, by giving s ignificant weight to an improper factor, and by incorrectly weighing other factors, thus imposing an unreasonable sentence. We AFFIRM. In 2005, Jones pled guilty and was convicted of possessing a firearm after having been convicted o f a felony, in violation of 1 8 U.S.C. §§ 922(g) and 924(a). 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 13, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion 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 forth in 5 T H C I R

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He was sentenced t o a term of imprisonment followed b y three y ears of supervised release. The terms of the supervision r e quire d h i m n o t to commit another crime. According to J ones, he began s upervision on F ebruary 1 0, 2010. In 2012, J o n e s a d m itted he violated the conditions of his release by committing two m isdemeanor offenses. The United States District Court for the Southern District of T exas adjudicated him guilty of these violations and sentenced him t o 18 months’ imprisonment. He appeals the reasonableness of that sentence. DISCUSSION We review a sentence i mposed upon r evo c ati o n o f s u p e rvi s e d r e lease under the plainly unreasonable standard. Unit e d States v. Miller , 634 F.3d 8 41, 843 (5th Cir. 2011). This standard is more d e f e rential than the standard that applies to sentences imposed upon conviction. Id. “[W]e evaluate whether the district court p rocedurally erred b efore we consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. (quotation marks omitted). If the sentence i s determined to be unreasonable, we then “consider whether the error was obvious under existing law.” Id. T h e parties dispute whether J ones sufficiently preserved his arguments to avoid plain-error review. We need not resolve the dispute , a s J o nes’s arguments fail even under an abuse-of-discretion standard. Jones first contends the district court procedurally erred by failing to give

an a dequate explanation of its reasons for imposing th e sentence. I n sentencing after a revocation, a court “ should set forth enough to satisfy the appellate court that [it] has c onsidered the p arties’ arguments and has a reason e d basis for exercising [its] own legal decisionmaking authority.” United S tates v. Whitelaw ,

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580 F.3d 256, 261 (5th Cir. 2009) ( quoting Rita v. United States , 551 U.S. 338, 356 (2007)). H ere, the statutory maximum term of i mprisonment was two years, and the revocation-imprisonment range was 7 to 13 month s . D espite Jones’s
p r e s e ntation of mitigating reasons f or a lower sentence, the district cour t sentenced him to serve 18 months’ imprisonment; thus, “some explanation was required.” Id. at 261-62. The district court s tated that the sentence w as i m pose d p u r s u a nt to the United States Sentencing Commission’s relevant policy statements and that it addressed the “objectives of punishment, incapacitation and deterrence.” Jones objected, and the c ourt fur t h e r explained it accounted for the time Jones had already served. The court believed the s e ntence was necessary because Jones had demonstrated he was “incapable of following any kind o f supervised release”

s uch that h e needed a “ a rather stiff s entence.” The s tatement was s u p p o r t e d by the pre-sentence investigation report, which r eveals t h i s w a s Jones’s third time to have post-imprisonment supervision revoked. The record reveals that the district c ourt c onsidered Jones’s arguments, and Jones fails to show the sentencing decision was unreasonable. We conclude the district court’s explanation is sufficient. Jones has not shown p r o cedural

error. Second, Jones argues the sentence w as substantively unreasonable b ecause the district court gave significant weight to an improper facto r . H e asserts the court impermissibly r elied on “punishment” as a reason for imposing the sentence. See Miller , 634 F.3d at 844. Generally, it is proper for a court to consider “the n e e d for the s entence imposed

. . . to provide just punishment f or the offense.” 1 8 U.S.C. 3553(a)(2)(A).

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In Miller , though, w e held that Congress had c l early prohibited consideration of the “just punishment” factor of Section 3 553(a)(2)(A) when imposing a s entence after revocation of a supervised release term. M iller , 6 34 F.3d at 844 (citing 18 U.S.C. § 3583(e)). Even so, we noted that “the goal of revocation is to punish a defendant for violating th e terms of the supervised release.” Id. at 8 43. The goal is identified in the introduction to the United States Sentencing Commission’s policy chapter dis c u s s i ng violations of s u pervised release, in which the Commission stated that the re v o k ing court should penalize a defendant for breaching the court’s trust, as opposed to punishing the defendant for the new criminal conduct. U.S.S.G. ch. 7, pt. A, introductory cmt. ¶ 3(b) (2011). Here, the district court twice r eferenced punishment. The first time, the court said the sentence addressed an objective of punishment. The second time, the court found that Jones’s actions showed he was “incapable o f following any kind of supervised release” and expressed a b e lief that Jones needed to be punished. The pre-sentence investigation report shows that Jones’s probation

was revoked in 2000 and 2 005, and each revocation resulted in new c o nfinement. The record indicates that the court sought to p u nish Jone s f o r v i o lating the conditions of his supervised release. There was no error. Jones also argues his sentence is substantively u nreasonable because the district court failed t o give sufficien t w e ight t o the mitigating evidence he
pr e s e n t ed and gave too m u ch weight to his prior criminal history. See United States v. Smith , 440 F.3d 704, 708 (5th Cir. 2006). I n considering his argument, we “take into account the totality of the circumstances, including the extent of
any variance

. . . b ut must give due deference to the district court’s d ecision that

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the [permissible] § 3553(a) factors, on a whole, justify the extent of the variance.” Gall v. United States , 552 U.S. 38, 51 (2007). Specifically, Jones asserts his underlying o f f e n s e s, which led to the revocation, were misdemeanors that reflected poor judgment, as opposed to the actions of a dangerous offender. He also expressed a d e s i r e to be a part of his children’s lives and to earn an e duca t ion i n o rder to obtain a job. The record shows the distr i ct court considered Jones’s assertions and, in addition to punishment, imposed the 18-month sentence to address incapacitation and deterrence. His history and characteristics, as revealed in th e p re-sentence investigation r eport, show aggravated a cts o f violence and multiple revocations of supervision. Thus, Jones fails to show an abuse of discretion, and i n light of the d eference o w ed to the district court, w e hold that the sentence imposed is not substantively unreasonable. See id. AFFIRMED.

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