United States v. Ortiz

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 25, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 06-10431 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERNESTO ORTIZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:05-CR-64-ALL --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

The district court revoked Ernesto Ortiz’s supervised release,

and he was sentenced to serve 23 months in prison and 36 months on

supervised release. Ortiz appeals his sentence. He argues that

his sentence is unreasonable because it exceeded the advisory

guideline range and because the district court failed to provide

sufficient reasons for the sentence. He requests this court to

vacate his sentence and remand the case for resentencing.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-10431 -2-

The Government has moved for dismissal of the appeal or for

summary affirmance on the ground that this court lacks jurisdiction

to consider Ortiz’s appeal under 18 U.S.C. § 3742(a)(4). In a

recent unpublished decision, United States v. Rivera-Cerda, 200 F.

App’x 372, 372 (5th Cir. 2006), we pretermitted this question

because the merits were clear, citing United States v. Weathersby,

958 F.2d 65, 66 (5th Cir. 1992). Weathersby, in turn, relied on

Norton v. Mathews, 427 U.S. 524 (1976) for that theory of

hypothetical jurisdiction, but the Supreme Court rejected the

theory of hypothetical jurisdiction, and distinguished Norton, in

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94

(1998). Hence we must decide the jurisdictional question.

We plainly have jurisdiction. The Government argues that we

lack jurisdiction because Ortiz claims only that his sentence on

revocation of release was “unreasonable,” not “plainly

unreasonable.” For this proposition it cites United States v.

DiMarco, 46 F.3d 476, 477 (5th Cir. 1995), where we outlined the

four bases for jurisdiction to review a sentence, only one of which

might apply here: we can review a sentence for plain

unreasonableness if there are no sentencing guidelines, as is the

case on revocation of supervised release. Post-Booker, of course,

we can review sentences - at least post-conviction sentences - for

Booker reasonableness, a fact not countenanced in DiMarco. In one

published, United States v. Hinson, 429 F.3d 114 (5th Cir. 2005),

and three unpublished cases, United States v. Sherman, No. 05-

10731, 2007 WL 43419 (5th Cir. Jan. 8, 2007); United States v.

Neal, No. 05-20924, 2007 WL 26833 (5th Cir. Jan. 4, 2007); United No. 06-10431 -3-

States v. Weese, 199 F. App’x 394 (5th Cir. 2006), we have declined

to decide whether, post-Booker, we now review sentences on

revocation of supervised release for plain unreasonableness or

Booker unreasonableness, because all four sentences survived the

latter, more exacting standard. We still haven’t decided the

question. Hence we have jurisdiction to review Ortiz’s sentence -

using one of the two standards of review - and we won’t require

Ortiz to talismanically cite “plain unreasonableness,” even were we

to conclude that was the appropriate standard, to conclude that we

have jurisdiction. As in the four above cases, we have

jurisdiction here. The Government’s motion for dismissal of the

appeal or for summary affirmance is therefore denied.

As in the above cases, however, resolution of the plain

unreasonableness/Booker unreasonableness issue is not needed to

dispose of this appeal because Ortiz has not shown that he should

prevail under the stricter Booker standard. Ortiz’s sentence

exceeded the recommended guidelines sentence but not the pertinent

statutory maximum sentence. Further, a review of the record

demonstrates that the district court considered the relevant

sentencing factors, most notably Ortiz’s persistent use of cocaine.

See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006);

Hinson, 429 F.3d at 120. Consequently, the sentence was neither

unreasonable nor plainly unreasonable.

AFFIRMED; MOTION FOR DISMISSAL OR SUMMARY AFFIRMANCE DENIED;

ALTERNATIVE REQUEST FOR EXTENSION OF TIME DENIED AS UNNECESSARY.