### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 50490

UNITED STATES OF AMERICA,

Plaintiff

–

Appellee , v. SAMANTHA CASTRO, also known as Samantha Moreno Castro, also known as Samantha M. Castro , Defendant

– Appellant

.

Appeal from the United States District Court for the Western District of Texas USDC No. DR

- 10

- CR01561

- AM

Before DAVIS, D e MOSS, and ELROD, Circuit Judges

. PER CURIAM: * Castro appeals her sentence of eighteen months in connection with revocation of her supervised release

. On appeal, Castro argues that the district
court did not consider the proper factors in imposing her sentence , and that the sentence is an unreasonable departure from the sentencing guidelines.

* Pursuant to Fifth Cir . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under t he limited circumstances set forth in Fifth Cir . R. 47.5.4. Uni ted States Court of Appeals Fifth Circuit 

### FILED October 29, 2014

Lyle W. Cayce Clerk Case: 14-50490 Document: 00512819158 Page: 1 Date Filed: 10/29/2014No. 14

- 50490 Because we find that the district court properly considered and applied the
relevant factors in imposing Castro’s sentence, we AFFI RM.
I. On January 20, 2010, Castro was detained and charged with one count of transportation of aliens in violation of 8 U.S.C. § 1324(a)(1)

. Castro was
released on bond and instructed to attend a subs tance abuse treatment

progra m for methamphetamines. She fled the treatment center and a warrant for her arrest was issued

. Thereafter, she was taken into custody. She was subsequently sentenced to one year of supervised probation. On May 9, 2011 Castro’s probation was revoked, and she was sentenced to ei ght months imprisonment followed by three years of supervised release. On Februa ry 19, 2014, the government filed a petition to revoke Castro’s supervised release. The district court held a revocation hearing on May 19, 2014 , and imposed a
revocation sen tence of eighteen months of imprisonment, to run consecutively
to any s tate charges, followed by a second supervised release term of eighteen
months. The following facts and events were considered at the May 19, 2014 revocation hearing. Among other conditions of her probation, Castro was required to : (1) abstain from the use of alcohol and/or all other into xicants during the term of supervision; (2) answer t ruthfully all inquiries by the

p robation o fficer and follow the instructions of the p robation o fficer; and (3) refrain from committing another federal, state, or local crime. Castro had a suspended driver’s license dating back to unpaid tickets in
2008. On January 19, 2014, Castro was pulled over and cited for driving on a suspended l icense. Sh e was instructed to find alternate transportation. On January 31, 2014, Castro was arrested for p ublic i ntoxication and driving with license s uspended. The arresting officer stated that he was not certified to perform the breathalyzer test required to ar rest Castro for driving while 2 Case: 14-50490 Document: 00512819158 Page: 2 Date Filed: 10/29/2014No. 14

- 50490 intoxicated, but that had the breathalyzer been available, Castro would have been arrested for DWI. On February 4, 2014, Castro advised the probation office of the arrest for driving with a suspended license. According to th e
p robation o fficer, at a February 4, 2014 administrative hearing, Castro attempted to downplay her arrest. The p robation o fficer recommended that Castro’s term of supervision be revoked.
II. Sentences imposed on revocation of supervised release are revi ewed under a “plainly unreasonable” standard. United States v. Miller , 634 F.3d 841, 843 (5th Cir. 2011), cert. denied 132 S.Ct. 496 (2011). However, if the
d efendant fails to make a sufficient objection in the district court, this circuit uses a “plain error” standard of review. United States v. Warren , 720 F.3d 321,
326 (5th Cir. 2013) . “[U]nder plain error review, the defendant bears the
burden to show : (1 ) error ; (2) that is plain ; (3) that affects his substan tial rights”; and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceeding. Id . (internal quotation marks and citation omitted). Here, because Castro did n ot make a sufficient objection in the district court, we use the plain error standard of review.
III. A district court’s imposition of sentencing upon revocation of supervised release is governed by 18 U.S.C. § 3583(e)(3). Under § 3583(e)(3), after

co nsidering the factors set forth in § 3553(a)( 1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7), the district court may “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of super vised release authorized by statu t e for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision. . . .” § 3583(e)(3).

3 Case: 14-50490 Document: 00512819158 Page: 3 Date Filed: 10/29/2014No. 14

- 50490 The original charge underlying Castro’s supervised release is the transportation of an alien offen s e, in violation of § 1324(a)(1)(A)(ii) and (B)(ii). This is a Class D felony. Under § 3583(e)(3), where the underlying offense of
conviction is a Class D felony, the statutory maximum for sentencing in
connection with revocation of supervised release is two years. § 3583(e)(3). The district court imposed a sentence of eighteen months, which is less than the two year maximum permitted under § 3583(e)(3). Castro argues that the district court did not adequately cons ider the relevant factors w hen determining her sentence. 1 Castro further argues that the district court provided insufficient reasons for imparting the eighteen

month sentence , which was above the sentencing rang e in the advisory guidelines

. The district court may impose a sentence outside of the advisory guidelines ’ range , so long as the court does not exceed the statutory maximum.
Warren , 720 F.3d at 332 ( citing United States v. Casey , 340 F. App’x 199, 200 (5th Cir. 2009)). Through the r evocation hearing , t he district court explained precisely why it was choosing to impart a lengthy sentence upon Castro , given the specific circumstances of her violations and her history while on supervised
release

. The district court considered the multi ple opportunities Castro had received, including being part of an extremely small minority of defendants
who were initially granted probation. The district court also considered Castro’s failure to reform her behavior after receiving previous warnings and directives from her probation officers. The court also stated that it considered the ineffectiveness of her previous incarceration at rehabil itating her behavior

1 Castro argues that the district court did not properly consider the factors under § 3583(c). Because this is a sentence imposed in connection with a revocation of supervised release, it is properly governed by § 3583(e), not § 3583(c). U nder § 3583(e) , the relevant factors are those listed in § 3553(a)(1), (a)(2)(B), (a)(2)(C ), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). 4 Case: 14-50490 Document: 00512819158 Page: 4 Date Filed: 10/29/2014No. 14

- 50490 and deterring her from future offenses. On this record, the district court’s
decision was n ot “plain error.” Because Castro fails to show that the district court’s sentence was in error, we AFFIRM.

5 Case: 14-50490 Document: 00512819158 Page: 5 Date Filed: 10/29/2014