     Case: 16-40192      Document: 00513719934         Page: 1    Date Filed: 10/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 16-40192
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        October 17, 2016
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

EFRAIN BALDIVIA, III,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:14-CR-31-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Efrain Baldivia, III, appeals the 24-month sentence imposed after
revocation of the supervised release term attendant to his conviction for
possession with intent to distribute controlled substances. He argues for the
first time that the district court impermissibly based the above-guidelines
sentence on the seriousness of the offense and the need to provide just




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-40192     Document: 00513719934     Page: 2   Date Filed: 10/17/2016


                                  No. 16-40192

punishment in violation of United States v. Miller, 634 F.3d 841 (5th Cir. 2011).
See 18 U.S.C § 3553(a)(2)(A).
      Because in the district court Baldivia did not object to the sentence,
review is for plain error only. See United States v. Whitelaw, 580 F.3d 256,
259-60 (5th Cir. 2009). Under the plain error standard, Baldivia must show a
plain (clear or obvious) forfeited error that affected his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the
discretion to correct the error, but should do so only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. Id.
      Baldivia, however, has not met this standard as the district court’s
revocation sentence was permissibly based on the “nature” of the allegations
of the supervised release violations that it found to be true, not on the
“seriousness” of those alleged offenses. See § 3553(a)(1); Miller, 634 F.3d at
844. The non-guidelines sentence does not rise to the level of plain error given
Baldivia’s history and characteristics, the need to deter future criminal
conduct, and the need to protect the public. See § 3553(a)(1), (a)(2)(B)-(C);
Miller, 634 F.3d at 844 .
      AFFIRMED.




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