United States v. Alvarado

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40102 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAMON OMAR ALVARADO,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. M-98-194-01 - - - - - - - - - -

August 27, 1999

Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Ramon Omar Alvarado appeals as excessive the sentence

imposed by the district court upon the revocation of his terms of

probation and supervised release. He first contends that, in

determining his sentence, the district court failed to consider

adequately the factors set forth in 18 U.S.C. § 3553(a). He also

argues that the district court erroneously believed that it was

required to sentence him within the guideline range available at

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40102 - 2 -

the time of his initial sentencing. Lastly, he contends that his

sentence is plainly unreasonable.

Because there are no applicable guidelines for sentencing

after revocation of probation, see U.S.S.G. Ch. 7, Pt. A., 1,

this court will uphold Alvarado’s sentence unless it is in

violation of law or is plainly unreasonable. See United States

v. Teran, 98 F.3d 831, 836 (5th Cir. 1996).

Section 3553(a) directs the district court to consider

various factors when determining the appropriate sentence upon

revoking a defendant’s term of probation. These include, inter

alia, (1) the nature and circumstance of the offense, and the

history and characteristics of the defendant; (2) the need for

the sentence to reflect the seriousness of the crime; (3) the

kinds of sentences available; (4) the types of sentences and the

sentencing range established for the offense; and (5) the

applicable policy statements issued by the Sentencing Commission.

See Teran, 98 F.3d at 836.

The district court expressly considered each of the

preceding factors in determining Alvarado’s sentence. It weighed

the guideline range for the original offense, the applicable

policy statements, Alvarado’s storied history as a drug dealer,

and the need for a prolonged term of imprisonment to deter

Alvarado’s recidivist tendencies. Moreover, because the sentence

imposed was within the statutory range of punishment, it was not

plainly unreasonable. See United States v. Pena, 125 F.3d 285,

286 (5th Cir. 1997).

Alvarado’s argument that the district court erroneously No. 99-40102 - 3 -

believed itself constrained to the guideline range available at

the time of Alvarado’s original sentencing is frivolous. Even if

it is assumed that the district court believed itself to be so

limited upon resentencing, see Pena, 125 F.3d at 287 (after

revoking probation, district court is not limited to the “range

of sentences available at the time of the initial sentence”), he

has identified no injury resulting from this misconception.

Accordingly, his sentence is

AFFIRMED.