United States v. Alejandro Pavon

678 F. App'x 204

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 24, 2017
• Docket: 16-20166
• Status: Unpublished

Opinion

PER CURIAM: *

Alejandro Molina Pavon’s supervised release was revoked after he pleaded true to violating its conditions. At the sentencing hearing, the government recommended an 11-month sentence, but the district judge upwardly departed and sentenced Pavón to the statutory maximum of 24 months’ imprisonment. Pavón asserts on appeal that the district court based its above-guidelines sentence on improper factors, but failed to specifically object to this at the sentencing hearing so the review is for plain error. See United States v. Rivera, 784 F.3d 1012, 1016 (5th Cir. 2015) (reh’g denied, 797 F.3d 307). A finding of plain error requires a clear and obvious error that affected the defendant’s substantial rights, and that a court of appeals may only correct if it “seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). We conclude that on this record any such error does not necessitate this court’s remedy, and affirm the district court’s ruling.

Pavón relies heavily on this court’s holding of reversible plain error in Escalante-Reyes where the district court repeatedly emphasized an improper basis for an increased sentence. United States v. Escalante-Reyes, 689 F.3d 415, 425-26 (5th Cir. 2012). That court chose to correct the plain error, but explained that “we are not satisfied that there is other evidence in the record that shows that [defendant’s] sentence is fair.” Id. at 425. The same may not be said in the instant case. The Presen-tence Investigation Report reflected that Pavón had a significant criminal history, including, but not limited to: drug offenses, theft, criminal trespass, and various aliases,, along with multiple deportations and illegal reentries. Accordingly, we hold that “[u]nder the circumstances of this case, we cannot say that the district court’s revocation sentence ... impugns the fairness, integrity, or public reputation of the court system.” Rivera, 784 F.3d at 1019.

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.