USA v. Mark Castillo

Filing

UNPUBLISHED OPINION FILED. [13-50245 Affirmed ] Judge: JES , Judge: JLW , Judge: ECP Mandate pull date is 07/15/2014 for Appellant Mark Castillo [13-50245]

Case: 13-50245

Document: 00512674466

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Date Filed: 06/24/2014

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

FILED

No. 13-50245

June 24, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee

v.
MARK CASTILLO,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-1095-1
Before SMITH, WIENER and PRADO, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Mark Castillo appeals the district court’s judgment
imposing an additional three-year term of supervised release as part of his
sentence for violating terms of a prior supervised release. We AFFIRM.
I. FACTS AND PROCEEDINGS
In 2008, Castillo pleaded guilty to one count of importing less than five
grams of cocaine base from Mexico, in violation of 21 U.S.C. § 960(a)(1), (b)(3).
While awaiting sentencing, Castillo’s pre-trial release was revoked after he
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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(1) submitted a urine sample that tested positive for cocaine, and (2) admitted
that he had used cocaine twice while on pre-trial release. The district court
sentenced him to 21 months of imprisonment, followed by a three-year term of
supervised release. A special condition of this supervised release required him
to “abstain from the use of alcohol and/or other intoxicants during the term of
supervision.”
Castillo completed that prison sentence in 2011 and began his term of
supervised release. A short while later, his supervised release was revoked
because (1) while extremely intoxicated, he was arrested for refusing to pay for
drinks he had ordered at a restaurant, and (2) he had used cocaine. The court
sentenced Castillo to nine months of imprisonment, to be followed by a second
three-year term of supervised release. Castillo was released from prison and
began supervised release in July 2012.
A few months later, Castillo was arrested and later convicted for being
intoxicated in public. The government again filed a petition to have Castillo’s
supervised release revoked, and the district court ruled that he had yet again
violated the applicable conditions. After considering the Chapter 7 policy
statements of the Guidelines Manual, the court determined that the
recommended three-to-nine months term of imprisonment was inadequate
because Castillo’s previous imprisonments had not deterred him from
engaging in further criminal conduct.

The court sentenced Castillo to 12

months of imprisonment, but imposed no term of supervised release. When
the sentencing judge informed Castillo that he was “lucky” she was not
imposing another term of supervised release, however, he “smirk[ed],”
prompting the court to revise Castillo’s sentence to include a three-year term
of supervised release. Castillo claims on appeal that this was error and seeks
to have the term of supervised release vacated.
II. ANALYSIS
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A.

Standard of Review

We review revocation sentences under a “plainly unreasonable
standard.” 1 Under this standard, “we evaluate whether the district court
procedurally erred before we consider ‘the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.’ ” 2
B.

Merits

Castillo contends that the district court erred because “the record clearly
establishes that [his impertinent facial expression] was the sole factor which
impelled the Court to change course and impose yet another term of supervised
release.” He maintains that the “imposition of a sentence following revocation
of supervised release is subject to the strictures of 18 U.S.C. § 3583(c), which
sets forth the [18 U.S.C. § 3553(a)] factors to be considered when sentencing a
defendant to a term of supervised release.” Castillo argues that, as “none of
the [§ 3553(a)] factors . . . can be construed to countenance a sentence based
solely on the behavior of the defendant while standing before the bench at
sentencing,” the court failed to weigh the relevant factors. In essence, Castillo
is asserting that the district court committed procedural error in imposing an
additional term of supervised release simply because he “smirk[ed].”
When, under § 3583(c), the sentencing court is determining whether to
impose a term of supervised release, it is required to consider “the factors set
forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and

1

United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).

Id. at 843 (quoting United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008)). The
government argues that our review should be for plain error only because, it contends,
Castillo did not make a sufficient objection at the revocation hearing. We need not determine
whether Castillo preserved this error for appeal because we find that his argument fails even
under the plainly unreasonable standard, a less difficult standard for him to satisfy.
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(a)(7).” 3 Likewise, when determining whether to revoke a term of supervised
release pursuant to 18 U.S.C. § 3583(e), the court is required to consider the
same § 3553(a) factors. 4 Finally, the sentencing court has statutory authority
to impose a further term of supervised release when it revokes supervised
release under 18 U.S.C. § 3583(h). Unlike § 3583(c) or (e), however, that
subsection does not expressly refer to the § 3553(a) factors.
We have not previously considered whether § 3583(h)—like § 3583(c)
and (e)—requires a district court to weigh the enumerated subset of § 3553(a)
factors 5 when determining whether to impose an additional term of supervised
release following revocation. 6

We need not answer that question today,

however: Assuming arguendo that § 3583(h) does mandate consideration of
those § 3553(a) factors, we are satisfied the district court appropriately
assessed them when it revised Castillo’s sentence to include an additional
three-year term of supervised release.
When, after revoking Castillo’s supervised release, the sentencing judge
imposed a 12-month sentence of imprisonment, she stated that, in light of his
criminal history and recidivism, the recommended range was inadequate. This

18 U.S.C. § 3583(c). These enumerated § 3553(a) factors are, respectively: (1) the
nature and circumstances of the offense; (2) the defendant’s history and characteristics;
(3) deterrence of criminal conduct; (4) protection of the public; (5) the provision of education,
training, medical care, or other correctional treatment; (6) the guidelines sentence range and
applicable policy statements; (7) the avoidance of unwarranted sentence disparities; and
(8) providing restitution to victims.
3

4

18 U.S.C. § 3583(e); Miller, 634 F.3d at 844.

5

18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6) & (a)(7).

We note that the Eleventh Circuit has assumed, without deciding, that a district
court must do so. See United States v. Wasielak, 253 F. App’x 822, 825 n.2 (11th Cir. 2007)
(unpublished) (“Because the parties agree in their briefs that the district court must consider
the § 3553(a) factors in deciding whether to impose a second term of supervised release
following revocation [under § 3583(h)], we assume, without deciding, that the district court
must do so.”).
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confirms that the court properly considered §§ 3553(a)(1) and 3553(a)(2)(B),
two of the relevant factors. Next, when she informed Castillo that she would
not impose a further term of supervised release, his “smirk” in response
convinced her that he had not “learn[ed] to comply.”

The judge further

explained that Castillo was “old enough to know better” and that the original
12-month sentence she had imposed would therefore not be adequate to serve
the intended deterrent effect unless it were coupled with a subsequent term of
supervised release.

This explanation satisfies us that the court properly

reevaluated its sentence in light of § 3553(a)(2)(B) and ultimately imposed one
that met the goals of § 3553(a). 7
We conclude that the district court did not commit procedural error when
it considered Castillo’s demeanor in weighing the § 3553(a) factors. Castillo
asserts that a district judge’s “reading of a particular defendant’s demeanor . . .
is inherently speculative.” We disagree: A district court has “wide discretion in
determining which evidence to consider and to credit for sentencing
purposes.” 8 We rightly defer on matters that a cold record cannot reflect,
recognizing that the sentencing court is in the unique position of hearing the
testimony and observing the demeanor firsthand, and determining the
credibility of a testifying witness, including that of the defendant who is being

We do not require a district court to state explicitly the reasons for selecting a
sentence following revocation of a prior sentence. See United States v. Sanchez-Valle, 2014
WL 494810, at *2 (5th Cir. Feb. 7, 2014).
7

United States v. Cantu-Ramirez, 669 F.3d 619, 628 (5th Cir.), cert. denied, 132 S. Ct.
2759 and 133 S. Ct. 247 (2012) (citing United States v. Cooper, 274 F.3d 230, 240 (5th Cir.
2001)).
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sentenced. We “will not disturb a district court’s credibility determination
made at sentencing.” 9
As Castillo has not claimed that his within-policy statement term of
supervised release is otherwise substantively unreasonable, the judgment of
the district court is AFFIRMED.

United States v. Goncalves, 613 F.3d 601, 609 (5th Cir. 2010); see also United States
v. Vigil, 504 F. App’x 303, 304 (5th Cir. 2012) (“This court defers to the district court’s superior
position in making credibility determinations.”).
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