JENNIFER WALKER ELROD, Circuit Judge:
Sandra Rivera violated the conditions of her supervised release. The district court rejected the within-Guidelines recommendation of the magistrate judge and departed upward, imposing the five-year maximum revocation sentence. Rivera timely appealed her revocation sentence, arguing that the district court relied upon improper considerations when it imposed it. Because Rivera has not satisfied the fourth prong of the plain-error standard, we affirm.
In 2001, Rivera pleaded guilty to possession of cocaine with intent to distribute and was sentenced to 121 months' imprisonment. After her release from prison, Rivera was deported to Mexico and began serving her five-year term of supervised release. Rivera violated the conditions of her supervised release by committing two new law violations — illegal reentry and murder — and by violating a special condition that prohibited her from illegally reentering the United States.
The probation officer prepared a worksheet that calculated a Guidelines range of 24-30 months' imprisonment for the violations and noted that the statutory maximum revocation sentence was five years. At a final revocation hearing before the magistrate judge, Rivera admitted the violations and asked for a sentence at the low end of the Guidelines to run concurrently with her 28-year state sentence. The magistrate judge recommended a revocation of supervised release and a within-Guidelines sentence of 28 months to run consecutive to her state sentence.
Rivera requested and received a hearing before the district court to review the magistrate judge's sentencing recommendation, and during this hearing, the district court made numerous references to the seriousness of the murder and to the court's desire to provide a just punishment. The district court began by asking
After delivering these remarks, the district court asked to hear from Rivera's counsel. Rivera's counsel recounted her transfer from prison to a medical facility due to mental illness and explained that she had suffered from mental illness since childhood. When the district court asked why Rivera appeared to be smiling and whether counsel doubted her competency, counsel responded that he did not doubt Rivera's competency, that Rivera meant no disrespect, and that Rivera was aware of her circumstances and had asked for a review of the sentence recommendation because she wanted her sentence to run concurrently with her state murder sentence. Counsel then explained that "[t]his unfortunately stems from childhood issues where she was the victim of sexual abuse at the hands of a relative, along with another minor relative of hers."
The district court responded: "What does? The fact that she traffics [sic] cocaine or the fact she kills people with screwdrivers and razors?" Counsel clarified that he was simply advising the court of the reason for her mental illness and transfer to a medical facility, and the reason that he did not doubt her competency. Counsel also advised the district court that he had spoken to Rivera, "[s]he has a very clear memory of everything that I've asked her," and she understood everything that was happening. Counsel also mentioned that Rivera had stopped taking her prescribed medication because she did not like the side effects, but he believed that this did not affect Rivera's ability to understand what was happening.
The district court then interjected: "she's almost laughing. She's about to get a five-year sentence, which I'm going to run consecutively, and she apparently thinks this is all funny." At the district court's invitation, Rivera's counsel conferred with his client. When they had finished conferring, the district court asserted that it had "the right to consider 3553 to determine what sentence is appropriate," and the court asked whether it should consider anything else on Rivera's behalf. Counsel then notified the district court that Rivera had been smiling because "she was reacting to the translation and the things [counsel] was saying about the medicine that she was taking and the side effects," and she was not laughing at the court.
In response, the district court stressed the seriousness and brutality of the murder and the insufficiency of the punishment that Rivera had received for it:
Rivera, her counsel, and the probation officer clarified that Rivera's burglary sentence had run concurrently with her federal drug sentence, not her state murder sentence. Rivera's counsel then advised that "we're just asking for leniency as much as the Court can muster given the situation." The district court responded by noting that Rivera could have been charged with and convicted of illegal reentry, that her Guidelines range for the offense would have been 57-71 months, and that because of the five-year statutory maximum, the district court was "capped at giving her less than what she would have received for the illegal re-entry after deportation."
Rivera's counsel and the government indicated that they had nothing further to add, and the district court departed upward to the maximum, sentencing Rivera to five years' imprisonment. This appeal followed.
Ordinarily, this court reviews revocation sentences under a "plainly unreasonable" standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir.2011). As Rivera concedes, however, her failure to object in the district court results in plain-error review. United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir.2009); Fed. R.Crim.P. 52(b).
18 U.S.C. § 3583(e) provides in pertinent part:
18 U.S.C. § 3583(e)(3). In Miller, this court observed that § 3583(e) requires district courts to consider certain § 3553 factors but omits from this list § 3553(a)(2)(A), which concerns "the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." 18 U.S.C. § 3553(a)(2)(A). In view of Congress's deliberate omission, Miller held that "it is improper for a district court to rely on
This appeal raises the single question of whether the seriousness of Rivera's murder and the need to provide just punishment were dominant factors in Rivera's revocation sentence, or rather only secondary concerns or additional justifications. Our review of the record compels us to reach the former conclusion. The district court did mention Rivera's unrepentant demeanor at sentencing, the fact that Rivera had not been charged with or convicted of illegal reentry, and the fact that Rivera had previously received the benefit of a concurrent sentence after her commission of a prior offense. However, the seriousness of Rivera's murder and the need to provide a just punishment were dominant factors in the district court's sentencing decision. Throughout the hearing, the district court repeatedly stressed the seriousness and brutality of the murder and the inadequacy of the state prison sentence that Rivera had received for it. These were not simply passing remarks; they were the district court's main focus throughout the hearing.
The district court opened by stating that "this is the most serious one I've ever had in front of me where someone returns illegally and then the new law violation is murder," and the court continued "I'm prepared to upwardly — vary upwardly depart and give you the five years. You committed a murder. I just don't know that it gets any worse than that." The district court described the murder as "horrific," "[e]xtremely violent," and "the most serious allegation, new law violation that I've ever considered." The district court suggested that Rivera's 28-year state prison sentence was not long enough because she would become eligible for parole after only 11 years. These observations were the principal justifications that the district court offered for its above-Guidelines, maximum sentence, and the district court made only a passing reference to its "right to consider 3553 to determine what sentence is appropriate." This case is different from Walker, in which the district court made a brief reference to an impermissible consideration when it pronounced the revocation sentence, and it did so only after it explicitly addressed several permissible considerations. 742 F.3d at 617.
Thus, the district court erred by making the seriousness of the murder and the need for just punishment dominant factors in Rivera's revocation sentence. The district court's error was also plain. For a legal error to be "plain," it must be "clear or obvious, rather than subject to reasonable dispute." Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). In light of Miller, there is no reasonable dispute as to whether a district court may rely upon the seriousness of the offense and the need for just punishment when sentencing a defendant for violation of the conditions of his supervised release. Congress's choice to prohibit district courts from relying on these considerations — which naturally and permissibly inform almost all other sentencing
Not all plain errors are curable, however — this court may correct a plain error only if it "affected the appellant's substantial rights." Puckett, 556 U.S. at 135, 129 S.Ct. 1423. "[I]n the ordinary case," this "means he must demonstrate that it affected the outcome of the district court proceedings." Id. (internal quotation marks omitted). "When the rights acquired by the defendant relate to sentencing, the outcome he must show to have been affected is his sentence." Id. at 142 n. 4, 129 S.Ct. 1423 (internal quotation marks omitted). "A sentencing error affects a defendant's substantial rights if he can show a reasonable probability that, but for the district court's [error], he would have received a lesser sentence." United States v. John, 597 F.3d 263, 284-85 (5th Cir.2010) (internal quotation and alteration marks omitted).
Rivera's Guidelines range was 24-30 months, and the magistrate judge had recommended a sentence of 28 months. Instead, the district court sentenced her to 60 months — the statutory maximum — and it relied primarily on the seriousness of the murder when it did so. Therefore, Rivera has shown a reasonable probability that, but for the district court's error, she would have received a lesser sentence.
Even if the first three prongs of plain-error review are satisfied, this does not end the analysis. Under the fourth prong, "the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (internal quotation and alteration marks omitted) (emphasis in original). The government did not brief the fourth prong. Nor did Rivera, except to argue that Miller error automatically warrants correction on plain-error review. We must reject this per se fourth-prong argument. Rivera's proffered approach would collapse the fourth prong into the first three and would contravene binding precedent that directs us to consider the facts of each case before finding that the fourth prong has been met.
Thus, in asking us to exercise our discretion, Rivera points to nothing beyond the district court's error and the increase in her sentence that the error may have caused.
Because Rivera failed to raise an objection in the district court and because we are not persuaded that the fourth prong of the plain-error standard has been met, we AFFIRM the judgment of the district court.