United States v. Caldera

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50812
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

JORGE CALDERA,

Defendant−Appellant.

Appeal from the United States District Court
for the Western District of Texas
No. 7:18-CR-9-1

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:
*

Jorge Caldera challenges the 37-month sentence following the revocation

*
Pursuant to 5TH CIRCUIT RULE 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should not be published and is not precedent except under the limited circumstances set forth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 CIRCUIT RULE 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
July 6, 2020

Lyle W. Cayce
Clerk
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No. 19-50812
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of supervised release for his 2006 conviction of possession with intent to dis-
tribute methamphetamine. A revocation sentence typically is reviewed to
determine whether it is “plainly unreasonable.” United States v. Miller,
634 F.3d 841, 843 (5th Cir. 2011). Because Caldera failed to object in the dis-
trict court, we review his procedural-reasonableness arguments for plain error.
See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). Caldera must
show a forfeited error that is clear or obvious and that affected his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). We have dis-
cretion to correct such an error if it “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal quotation marks,
brackets, and citation omitted).
Caldera maintains that the district court procedurally erred by failing to
consider the sentencing factors of 18 U.S.C. § 3553(a). Although the court did
not explicitly indicate that it had considered those factors, “[i]mplicit consider-
ation of the § 3553 factors is sufficient.” United States v. Teran, 98 F.3d 831,
836 (5th Cir. 1996).
Several facts support a conclusion that the district court implicitly con-
sidered those factors. The court had the petitions for warrant and the violation
worksheets, which detailed Caldera’s violations and the calculation of the rec-
ommended sentence. During the hearing, the court expressed concern with
Caldera’s inability to comply with the terms of his supervision, as evidenced
by his “multiple violations.” It also stated that it was revoking supervised
release per the Sentencing Reform Act of 1984, which sets forth the § 3553(a)
factors. Finally, the revocation hearing occurred immediately after the court
completed a full sentencing hearing for Caldera’s two new drug convictions,
which formed part of the basis for the revocation proceeding. At that prior
sentencing hearing, the court heard arguments regarding an appropriate
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sentence for those new offenses and stated that it had considered the § 3553(a)
factors. See United States v. Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001) (con-
cluding that the district court had implicitly considered the § 3553(a) factors
during revocation, based in part on the fact that the same court also had
imposed the original sentence, where it explicitly considered several of the
§ 3553(a) factors).
During Caldera’s revocation proceeding, the court stated on several occa-
sions that it also would be considering the facts and arguments it had just
heard at the new sentencing hearing. Based on these facts, we conclude that
the district court implicitly considered the § 3553(a) factors at the revocation
hearing, so Caldera has not shown plain error.
Caldera also briefly argues that the district court failed adequately to
explain its choice of sentence. Because the sentence is within the advisory
range, it is presumed reasonable, United States v. Lopez-Velasquez, 526 F.3d
804, 809 (5th Cir. 2008), and little additional explanation is required, United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). In addition, because plain
error review applies, Caldera must demonstrate that any error affected his
substantial rights, which means he must show that a more thorough explana-
tion would have resulted in a lesser sentence. See Whitelaw, 580 F.3d
at 264−65. Caldera has not made such a showing.
AFFIRMED.
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