USA v. Efrain Baldivia, III, No. 16-40192 (5th Cir. 2016)
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Case: 16-40192 Document: 00513719934 Page: 1 Date Filed: 10/17/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-40192 Summary Calendar United States Court of Appeals Fifth Circuit FILED October 17, 2016 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. EFRAIN BALDIVIA, III, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:14-CR-31-1 Before KING, DENNIS, and COSTA, Circuit Judges. PER CURIAM: * Efrain Baldivia, III, appeals the 24-month sentence imposed after revocation of the supervised release term attendant to his conviction for possession with intent to distribute controlled substances. He argues for the first time that the district court impermissibly based the above-guidelines sentence on the seriousness of the offense and the need to provide just 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-40192 Document: 00513719934 Page: 2 Date Filed: 10/17/2016 No. 16-40192 punishment in violation of United States v. Miller, 634 F.3d 841 (5th Cir. 2011). See 18 U.S.C § 3553(a)(2)(A). Because in the district court Baldivia did not object to the sentence, review is for plain error only. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). Under the plain error standard, Baldivia must show a plain (clear or obvious) forfeited error that affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the error, but should do so only if it seriously affects the fairness, integrity, or public reputation of the proceedings. Id. Baldivia, however, has not met this standard as the district court’s revocation sentence was permissibly based on the “nature” of the allegations of the supervised release violations that it found to be true, not on the “seriousness” of those alleged offenses. See § 3553(a)(1); Miller, 634 F.3d at 844. The non-guidelines sentence does not rise to the level of plain error given Baldivia’s history and characteristics, the need to deter future criminal conduct, and the need to protect the public. See § 3553(a)(1), (a)(2)(B)-(C); Miller, 634 F.3d at 844 . AFFIRMED. 2
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