USA v. Benito Urbina

Filing

UNPUBLISHED OPINION FILED. [13-40183 Affirmed ] Judge: JLW , Judge: PRO , Judge: CH Mandate pull date is 01/29/2014 for Appellant Benito Urbina [13-40183]

Case: 13-40183

Document: 00512492633

Page: 1

Date Filed: 01/08/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-40183
Summary Calendar

FILED
January 8, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BENITO URBINA,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-450-1
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Benito Urbina appeals from his sentence following
the revocation of his term of supervised release. His only contention is that
the district court impermissibly considered the need to promote respect for the
law and the need for just punishment when imposing sentence.
Because Urbina failed to object in the district court, our review is for
plain error. United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). To

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

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prevail under the plain error standard, Urbina “must show an error that is
clear or obvious and affects his substantial rights.” Id. at 260. If he makes
such a showing, we may exercise our discretion to correct the error, “but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.
Among the factors a district court should consider when imposing
sentences generally is “the need for the sentence imposed . . . to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.”

18 U.S.C. § 3553(a)(2)(A).

The factors in

subsection (a)(2)(A), however, are not listed among the factors that a district
court should consider when deciding whether to revoke a term of supervised
release and impose sentence pursuant to 18 U.S.C. § 3583(e). See § 3583(e).
“[I]t is improper for a district court to rely on § 3553(a)(2)(A) for the
modification or revocation of a supervised release term.” United States v.
Miller, 634 F.3d 841, 844 (5th Cir. 2011).
In Miller, however, we addressed a revocation and sentencing pursuant
to § 3583(e). Miller, 634 F.3d at 844. Urbina’s revocation and sentencing was
based in part on an allegation that he used and possessed cocaine. Revocation
of release and imposition of a sentence of imprisonment were mandatory
pursuant to § 3583(g), which does not list or omit any of the § 3553(a)
sentencing factors. See § 3583(g). We have not found clear or obvious error
when a district court has considered the factors set out at § 3553(a)(2)(A) in
revocations that are governed in whole or in part by § 3583(g). United States
v. Holmes, 473 F. App’x 400, 401 (5th Cir. 2012); United States v. Wilson, 460
F. App’x 351, 352 (5th Cir.), cert. denied, 132 S. Ct. 2759 (2012); United States
v. Flores-Gaytan, ___ F. App’x ___, No. 12-41398, 2013 WL 5670855, at *1 (5th
Cir. Oct. 18, 2013) (unpublished); United States v. Davis, ___ F. App’x ___, No.

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10-11152, 2013 WL 3227275, at *2-*3 (5th Cir. May 17, 2013) (unpublished),
cert. denied, 134 S. Ct. 349 (2013).

Although the cases on point are

unpublished, they are “highly persuasive because [this court] explicitly
rejected the identical argument that [Urbina] advances here.” United States
v. Pino Gonzalez, 636 F.3d 157, 160 (5th Cir. 2011).
AFFIRMED.

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