United States v. Alejandro

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2000
• Docket: 99-40785
• Status: Unpublished

Opinion

No. 99-40785 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40785 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAMIRO ALEJANDRO,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. C-99-CR-184-1 - - - - - - - - - - April 11, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Ramiro Alejandro appeals the revocation of his supervised

release and the imposition of a 23-month sentence. The only

issues before this court following revocation of supervised

release are whether the district court abused its discretion by

revoking supervised release and whether the sentence imposed was

in violation of the law or plainly unreasonable. See United

States v. McCormick, 54 F.3d 214, 219 and n.3 (5th Cir. 1995);

United States v. Mathena, 23 F.3d 87, 89 (5th Cir. 1994).

Possession by the defendant of a controlled substance, however,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-40785 -2-

results in the mandatory revocation of supervised release and

imprisonment, and the district court has no discretion to

disregard this requirement. See 18 U.S.C. § 3583(g); see also

United States v. Kindred, 918 F.2d 485, 487-88 (5th Cir. 1990).

The district court need find a violation only by a preponderance

of the evidence. See 18 U.S.C. § 3593(e)(3).

Alejandro testified under oath that, among other things he

used marijuana while on supervised release. Accordingly, the

district court’s finding that Alejandro violated his supervised

release condition was supported by the evidence and, as

revocation was mandatory, the district court’s decision to revoke

was proper. Because the district court’s decision to revoke

Alejandro’s supervised release was proper based on the drug

violation alone, this court need not address the nonsupport

violation or the merit, or lack thereof, of any of the asserted

Fifth Amendment issues Alejandro raises.

The district court’s imposition of a 23-month sentence was

neither in violation of the law nor plainly unreasonable.

Mathena, 23 F.3d at 89. The court’s decision to depart upward

from the recommendation of the probation office was based upon

the court’s finding that Alejandro had committed perjury

throughout the revocation hearing. The resulting 23-month

sentence, however, was within the maximum allowed under the law.

See 18 U.S.C. § 3583(e)(3). The district court’s judgment

AFFIRMED. The Government’s motion to file a supplemental brief

is DENIED.