United States v. Lemus

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50445
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MAURICIO LEMUS,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:08-CR-886-1

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Mauricio Lemus appeals the revocation of his supervised release term
for his conviction for possession with intent to distribute cocaine. The district
court concluded that Lemus violated the terms of his supervised release by
using controlled substances and committing an assault by strangulation and
unlawful restraint against his wife.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
May 11, 2020

Lyle W. Cayce
Clerk
Case: 19-50445 Document: 00515411778 Page: 1 Date Filed: 05/11/2020

No. 19-50445
2
First, Lemus argues that the district court imposed an erroneous
sentence because the Government offered nothing more than hearsay to prove
that he committed a Grade A violation. However, we will not consider that
argument as Lemus has not sufficiently briefed the issue. See United States v.
Scroggins, 599 F.3d 443, 446-47 (5th Cir. 2010).
Second, he contends that the Government did not establish that the
alleged assault and unlawful restraint qualified as Grade A violations under
U.S.S.G. § 7B1.1. Because Lemus did not raise this objection in the district
court, we review for plain error only. See United States v. Warren, 720 F.3d
321, 326-27 (5th Cir. 2013).
We have held that Texas assault by strangulation is a crime of violence
under the Sentencing Guidelines. See United States v. Howell, 838 F.3d 489,
501-03 (5th Cir. 2016). Therefore, because the Government established by a
preponderance of the evidence that Lemus assaulted his wife by strangulation,
the district court did not err in categorizing the offense as a Grade A violation
under the Guidelines, and we need not consider whether unlawful restraint is
a crime of violence under the Guidelines. See id.; Warren, 720 F.3d at 326-27;
United States v. Hinson, 429 F.3d 114, 118-19 (5th Cir. 2005); § 7B1.1(b).
Finally, Lemus argues that the district court imposed a substantively
unreasonable sentence because his personal circumstances, specifically his
troubled marriage and substance abuse problem, did not warrant a 30-month
sentence. He also claims that the five-year term of supervised release was
unnecessary as a means of monitoring his interactions with his wife because
he informed the district court at sentencing that he was seeking a divorce.
However, the district court heard Lemus’s arguments for residential
treatment and explanations regarding his volatile marriage and substance
abuse problem. The district court also heard the Government’s concern over
Case: 19-50445 Document: 00515411778 Page: 2 Date Filed: 05/11/2020

No. 19-50445
3
the danger to the victim posed by her husband and expressed its own concern
over the state of the marriage. Lemus has not shown that the district court,
when imposing sentence, failed to consider a significant factor, considered an
improper factor, or made a clear error of judgment in balancing the relevant
factors. See Warren, 772 F.3d at 320. He therefore has not shown that the
district court abused its discretion by imposing a substantively unreasonable
sentence. See id.
AFFIRMED.
Case: 19-50445 Document: 00515411778 Page: 3 Date Filed: 05/11/2020