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United States v. Fuentes

United States Court of Appeals, Fifth Circuit

October 11, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
RICHARD FUENTES, Defendant-Appellant

          Appeal from the United States District Court for the Western District of Texas

          Before JOLLY, ELROD, and WILLETT, Circuit Judges.

          E. GRADY JOLLY, CIRCUIT JUDGE.

         Richard Fuentes appeals the district court's five-year sentence imposed after his supervised release was revoked. Because we conclude that the sentence was not plain error, we affirm the judgment of the district court.

         I.

         In 2003, Richard Fuentes pled guilty to possession of a firearm as a person who had accrued three prior convictions for violent felonies under the Armed Career Criminal Act (ACCA). See Johnson v. United States, 135 S.Ct. 2551, 2555 (2015). The district court sentenced him to 180 months of imprisonment and five years of supervised release. One of the supervised release conditions included in the judgment required Fuentes to attend and participate in sex offender treatment as approved and directed by the probation officer.[1] This court summarily affirmed the judgment of conviction.

         Fuentes then filed a 28 U.S.C. § 2255 motion in district court seeking relief because the Sentencing Guidelines had been ruled unconstitutional and his sentence exceeded the average sentence imposed for his statute of conviction. In response to the district court's show cause order, Fuentes repeated his claim regarding the unconstitutionality of the Sentencing Guidelines and added a claim that he had never been convicted of a violent felony. The district court dismissed his § 2255 motion because none of his claims warranted relief.

         In February 2006, Fuentes filed a second § 2255 motion in district court in which he claimed that he was denied the effective assistance of trial counsel. The district court dismissed his second § 2255 motion without prejudice as an unauthorized successive § 2255 motion and as untimely.

         Fuentes began his term of supervised release on March 8, 2016. In May 2016, the district court issued a summons for Fuentes at the probation officer's request and advised Fuentes to follow the applicable instructions and directives from the probation officer regarding Fuentes's sex offender evaluation and treatment. In September 2016, the probation officer filed a petition for a warrant recommending revocation of Fuentes's term of supervision due to his continued refusal to submit to sex offender evaluation and treatment. The petition contained two specific allegations against Fuentes: (1) in March 2016, he reported to a sex offender evaluation, but the evaluation could not be completed because he refused to sign the release of information documents; and (2) in August 2016, he reported twice to his sex offender evaluation, but the evaluation could not be completed on both occasions because he refused to participate fully in the process.

         At his revocation hearing, Fuentes refused to admit to the allegations in the petition and stated that he complied with all applicable requirements. The probation officer testified that Fuentes (1) refused to sign the consent form for his sex offender evaluation until the day the district court summoned him and advised him to comply; (2) refused to answer various questions during the sex offender evaluation, thereby preventing completion of that evaluation; and (3) persisted in that refusal despite the probation officer's explanation that his refusal to comply constituted a violation of the terms of his supervised release. The counselor who attempted to perform Fuentes's sex offender evaluation testified that (1) Fuentes refused to sign the consent form at their first meeting; (2) after he eventually signed the consent form, he refused to answer certain evaluation questions; (3) his refusal to answer those questions prevented completion of the evaluation; and (4) he persisted in that refusal despite the counselor's explanation that the evaluation could not be completed without those answers. The district court determined that Fuentes violated his supervised release conditions and therefore revoked that term of supervised release.

         The Government argued that Fuentes should be sentenced to the statutory maximum of five years of imprisonment, with no additional term of supervised release, because of Fuentes's steadfast refusal to comply with the terms of his release. The district court agreed with defense counsel that the revocation judgment could not include the sex offender condition for supervised release under current law because it was not based on a federal conviction. The district court sentenced Fuentes to five years of imprisonment with no term of supervised release. Fuentes filed a timely notice of appeal.

         II.

         On appeal, Fuentes argues that his five-year revocation sentence is substantively unreasonable because he (1) no longer qualifies for an enhanced penalty under the ACCA after Johnson and (2) has already served more time in prison than the non-ACCA aggregate maximum for his original offense and revocation. He concedes that he cannot challenge his underlying conviction and sentence and that he did not object to the revocation sentence.

         When a defendant properly preserves an objection for appeal, revocation sentences are reviewed under a "plainly unreasonable" standard. See 18 U.S.C. § 3742(a); United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). To determine whether a sentence is plainly unreasonable, this court first evaluates whether the district court committed a "significant procedural error, such as failing to consider the [18 U.S.C.[ § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing adequately to explain the chosen sentence, including failing to explain a deviation from the Guidelines range." United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013) (internal quotation marks and citation omitted). If there is no procedural error, the court considers the substantive reasonableness of the sentence under an abuse of discretion standard, "examining the totality of the circumstances." Id. at 326, 332.[2]Fuentes, however, did not object to the sentence below, so we review for plain error. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To show plain error, Fuentes must demonstrate an error that is clear or obvious - "rather than subject to reasonable dispute" - and affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that showing, this court has the discretion to correct the error only if it "seriously affect[s] the fairness, integrity[, ] or public reputation of judicial proceedings." Id. (internal quotation marks and citation omitted). The burden of establishing entitlement to relief for plain error is on the party claiming it. See United States v. Dominguez Benitez, 542 U.S. 74, 82 ...


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