USA v. Rafael Pellot

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UNPUBLISHED OPINION FILED. [09-40988 Affirmed ] Judge: WG , Judge: WED , Judge: PRO Mandate pull date is 10/05/2010 for Appellant Rafael Arcangel Pellot [09-40988]

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USA v. Rafael Pellot Doc. 0 Case: 09-40988 Document: 00511232570 Page: 1 Date Filed: 09/14/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-40988 S u m m a r y Calendar September 14, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. R A F A E L ARCANGEL PELLOT, D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 2:06-CR-440-1 B e fo r e GARWOOD, DAVIS, and OWEN, Circuit Judges. P E R CURIAM:* R a fa e l Arcangel Pellot appeals the district court's revocation of his s u p e r v is e d release. He argues that the evidence was insufficient to prove that h e committed indecency with a child by sexual contact in violation of TEXAS P ENAL CODE ANN. 21.11(a)(1). He further argues that the district court erred b y failing to give reasons for its revocation of his supervised release. We review the district court's decision to revoke supervised release for a b u s e of discretion. United States v. Spraglin, 418 F.3d 479, 480 (5th Cir. 2005). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Dockets.Justia.com Case: 09-40988 Document: 00511232570 Page: 2 No. 09-40988 Date Filed: 09/14/2010 A district court may revoke a defendant's supervised release if the court finds by a preponderance of the evidence that the defendant has failed to comply with the c o n d itio n s of supervised release. United States v. McCormick, 54 F.3d 214, 219 (5 t h Cir. 1995); see 18 U.S.C. 3583(e)(3). T h e district court did not abuse its discretion in this case. In considering a challenge to the sufficiency of the evidence, this court views the evidence and a ll reasonable inferences that may be drawn from the evidence in a light most fa v o r a b le to the Government. United States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5 t h Cir. 1994). Because the testimony of the victim and Pellot conflicted with t h e testimony of the other witnesses, the district court made credibility d e t e r m in a t io n s in reaching its decision. This court affords great deference to a d is t r ic t court's credibility findings. Id. at 791. The district court did not abuse it s discretion in finding that Pellot had committed the indecency offense. P e llo t 's argument raised for the first time on appeal that the district court fa ile d to give reasons for its revocation of his supervised release is reviewed for p la in error.1 See United States v. Myers, 198 F.3d 160, 166 (5th Cir. 1999); see a ls o United States v. Magwood, 445 F.3d 826, 828 (5th Cir. 2006). To show plain e r r o r , Pellot must establish a clear or obvious error that affected his substantial r ig h ts . See Puckett v. United States, 129 S.Ct. 1423, 1429 (2009). Pellot, h o w e v e r , does not attempt to show that any error by the district court affected h is substantial rights and has not satisfied the standard of plain error review. Id. At the hearing on the motion to revoke the district court clearly and correctly noted that the motion alleged "a law violation, indecency with a child by sexual conduct, in violation of Texas Penal Code 21.11, on or about March 14, 2009, in Cameron County, Texas," and ascertained that pellot understood the allegation. There was no other violation alleged. At the conclusion of the hearing the court stated to Pellot: "I do find that you did violate the terms and conditions of your supervision, as alleged in the allegation," and revoked his supervised release and sentenced him to 30 months' confinement followed by 30 months' supervised release. The written judgment of the same date recites that Pellot was found guilty of "Law Violation Indecency with a Child by Sexual Contact 03-14-09." 1 2 Case: 09-40988 Document: 00511232570 Page: 3 No. 09-40988 Date Filed: 09/14/2010 A c c o r d in g ly , the district court's judgment is AFFIRMED. 3

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