USA v. Wilbert Concho

Filing

UNPUBLISHED OPINION FILED. [16-60753 Affirmed ] Judge: EHJ , Judge: JLW , Judge: EBC Mandate pull date is 05/23/2017 for Appellant Wilbert Concho [16-60753]

Case: 16-60753

Document: 00513975944

Page: 1

Date Filed: 05/02/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60753
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 2, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WILBERT CONCHO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:06-CR-17-3
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *

Defendant-Appellant Wilbert Concho appeals the above-guidelines
sentence imposed by the district court following revocation of his fourth term
of supervised release. Concho contends that the sentence was procedurally
unreasonable because the district court failed to adequately explain the
reasons for imposing the above-guidelines sentence, and substantively

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

Case: 16-60753

Document: 00513975944

Page: 2

Date Filed: 05/02/2017

No. 16-60753
unreasonable because the sentence did not adequately reflect the facts of the
revocation and Concho’s personal history and characteristics.
We “review a sentence imposed on revocation of supervised release under
a plainly unreasonable standard, in a two-step process,” first “ensur[ing] that
the district court committed no significant procedural error, such as . . . failing
to adequately explain the chosen sentence, including failing to explain a
deviation from the Guidelines range.” United States v. Warren, 720 F.3d 321,
326 (5th Cir. 2013) (internal quotation marks and citation omitted). If we
conclude that there was no procedural error, we then determine whether the
sentence was substantively unreasonable under an abuse of discretion
standard. Id. at 326, 332.
Concho has not shown procedural error. The district court did sentence
Concho above the four to 10 month guidelines range, but the 24-month
sentence was well within the statutory maximum of 36 months.

When

imposing sentence, the district court explained that it was justified based on
Concho’s prior pattern of failing to report to the Probation Officer and
absconding while on supervised release. Concho cites nothing to support his
argument that this was an inadequate explanation, and we have found no
procedural error in similar situations. See, e.g., United States v. Rice, 487 F.
App’x 182, 182-83 (5th Cir. 2011). 1
Neither has Concho demonstrated that his sentence was substantively
unreasonable.

The district court’s determination is entitled to deference.

See United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). The 24-month
sentence Concho received on revocation was not greater than the term
authorized by statute and, as such, was “clearly legal.” United States v. Pena,
Although an unpublished opinion issued after January 1, 1996, is not controlling
precedent, it may be considered as persuasive authority. See Ballard v. Burton, 444 F.3d
391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
1

2

Case: 16-60753

Document: 00513975944

Page: 3

Date Filed: 05/02/2017

No. 16-60753
125 F.3d 285, 288 (5th Cir. 1997). We have routinely upheld sentences on
revocation greater than the advisory policy range but within the statutory
maximum. See Rice, 487 F. App’x at 183 (affirming a 24-month sentence that
was above the guidelines range of five to 11 months); United States v. Jones,
182 F. App’x 343, 344 (5th Cir. 2006) (affirming a 24-month sentence that was
above the guidelines range of five to 11 months).
AFFIRMED.

3