United States v. Capetillo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50805
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GILBERTO CAPETILLO,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-667-1

Before WIENER, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Gilberto Capetillo argues on appeal that his 18-month revocation
sentence, which is above the range recommended by the Sentencing
Guidelines’ policy statements, is plainly unreasonable because the district
court improperly relied on the factors set forth in 18 U.S.C. § 3553(a)(2)(A) in
selecting its sentence. He further argues that his sentence is substantively
unreasonable because the court gave significant weight to impermissible

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 8, 2020

Lyle W. Cayce
Clerk
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No. 19-50805
2
factors and improperly balanced permissible factors. This court reviews a
challenge to a revocation sentence under a “plainly unreasonable” standard.
United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).
Capetillo claims that, contrary to Miller, the seriousness of the
underlying revocation offense, the need to promote respect for the law, as well
as the need to provide just punishment for the offense were dominant factors
in the court’s sentencing decision. The record shows, however, that the district
court merely mentioned those factors when considering the Chapter 7 policy
statements from the Guidelines. Before imposing the 18-month revocation
sentence, the district court stated that it had “considered the policy statements
contained within Chapter Seven of the Sentencing Guidelines Manual.” The
court found “their application to be inadequate” because “[t]hey do not reflect
the seriousness of the allegations, deter future criminal conduct, promote
respect for the law, or . . . impose a just sentence.” The court explained that
Capetillo was “basically doing the same stuff over again” and expressed
concern that a within-range sentence would not “get [his] attention.”
As the Government notes, the comments made by the court were
consistent with the permissible factors of deterrence and protection of the
public from further crimes of the defendant. See 18 U.S.C. § 3553(a)(1),
(a)(2)(B)-(C). Capetillo had twice violated his supervised release by failing to
abstain from alcohol and had even been arrested for driving while intoxicated.
Moreover, the district court’s observation that Capetillo was “basically doing
the same stuff over again,” reflects consideration of Capetillo’s history and
characteristics, his recidivism, and the nature and circumstances of his
supervised release violations, which are all permissible factors for the court to
consider in selecting a revocation sentence, see 18 U.S.C. § 3583(e); see also
Miller, 634 F.3d at 844. Capetillo has not shown that the district court relied
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No. 19-50805
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on an impermissible consideration as a dominant factor in imposing its
revocation sentence. See United States v. Walker, 742 F.3d 614, 616 (5th Cir.
2014).
Capetillo has also failed to show that his revocation sentence is
substantively unreasonable. The court’s statements, in their entirety, do not
necessarily reflect, as Capetillo argues, an overreliance on the need to punish
him for the underlying revocation offense or an improper emphasis on the
§ 3553(a)(2)(A) factors. This court has routinely upheld revocation sentences
exceeding the policy statement range when the district court cites reasons for
doing so. See United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). The
district court did so here, and its assessment of the relevant sentencing
considerations was not unreasonable.
The judgment of the district court is AFFIRMED.
Case: 19-50805 Document: 00515376033 Page: 3 Date Filed: 04/08/2020