Case: 19-20635   Document: 00515595194      Page: 1   Date Filed: 10/08/2020




          United States Court of Appeals
               for the Fifth Circuit                       United States Court of Appeals
                                                                    Fifth Circuit

                                                                  FILED
                                                            October 8, 2020
                             No. 19-20635
                                                             Lyle W. Cayce
                                                                  Clerk
   United States of America,

                                                      Plaintiff—Appellee,

                                versus

   Jesus Valdez Duarte,

                                                  Defendant—Appellant,

                        consolidated with


                            No. 19-20637


   United States of America,

                                                      Plaintiff—Appellee,

                                versus

   Jesus Valdez Duarte, also known as Juan Jose Valdivia,

                                                  Defendant—Appellant.
Case: 19-20635       Document: 00515595194            Page: 2     Date Filed: 10/08/2020




                                       No. 19-20635
                                     c/w No. 19-20637


                    Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:19-CR-562-1



   Before Graves, Costa, and Engelhardt, Circuit Judges.
   Per Curiam:*
          Jesus Valdez Duarte was serving terms of supervised release for two
   separate cases—one involving felon-in-possession convictions; the other
   involving possession of heroin while in federal prison. His supervision in
   both cases was revoked for violations relating to drug use and failure to
   report. The court sentenced him to 12-month prison terms in each case 1—
   within the Guidelines range and well below what the government
   recommended—and ordered those terms to run consecutive. In these
   consolidated appeals, Duarte challenges the decision to run the terms
   consecutive. He contends that the district court erred when it interpreted
   Application Note 4 to U.S.S.G. § 7B1.3 as recommending consecutive
   sentences in this situation.
          Although Duarte objected to the consecutive nature of his sentences
   on substantive reasonableness grounds, he did not object on the procedural
   ground that he raises now. As a result, his claim is reviewed for plain error.
   See United States v. Whitelaw, 

, 259 (5th Cir. 2009). To succeed


          *
            Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
          1
            In the firearms case, Duarte had two separate convictions. So he received two
   concurrent 12-month revocation sentences in that case. The issue on appeal is running
   those sentences consecutive with the 12-month term imposed in the separate case.



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Case: 19-20635     Document: 00515595194         Page: 3     Date Filed: 10/08/2020




                                    No. 19-20635
                                  c/w No. 19-20637


   under this standard, Duarte must show a clear or obvious error that affects
   his substantial rights. Puckett v. United States, 

, 135 (2009). If
   he makes this showing, we have the discretion to correct the error and should
   do so if it “seriously affects the fairness, integrity or public reputation of
   judicial proceedings.”

omitted).
          Assuming arguendo that there was plain error because Application
   Note 4 is silent about whether revocation sentences in separate underlying
   cases should run concurrently or consecutively, Duarte has not met his
   burden of showing prejudice. See Molina-Martinez v. United States, 

, 1343 (2016). After the defense objected to the consecutive nature of
   the sentences on the ground that the violations were “low level,” the court
   recited its reasons for the sentence. First it noted that it considered the
   relevant statutory factors, especially the “nature and circumstances of the
   offense and the history and characteristics of the defendant,” the need to
   deter, and the need “to protect the public from further crimes.” 18 U.S.C.
   §§ 3553(a)(1), (a)(2)(B), (a)(2)(C). The court then “add[ed]” that it ordered
   no further term of supervised release.” Next the court explained that Duarte
   had “just from day one constantly failed to comply with the requirements of
   supervised release,” so it had “determined that this is the appropriate
   sentence, much less than, of course, [] what the government is
   recommending.” In overruling the objection that it was unreasonable to
   impose consecutive sentences, the court did not mention Application Note 4
   as it had when first announcing the sentence. A belief that the Guidelines
   recommended consecutive sentences would have been a much more direct
   way to respond if that was a significant motivation for the sentence. Given
   the detailed and extensive reasons the court listed to justify the
   reasonableness of imposing consecutive sentences, something it certainly
   had the discretion to do, see United States v. Gonzalez, 

, 925-29



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Case: 19-20635     Document: 00515595194         Page: 4    Date Filed: 10/08/2020




                                   No. 19-20635
                                 c/w No. 19-20637


   & n.8 (5th Cir. 2001); see also 18 U.S.C. § 3584(a), Duarte has not shown a
   “reasonable probability” that the sentences would have been ordered to run
   concurrent were it not for the court’s earlier mention of Application Note 4.
   

.
          The judgment of the district court is AFFIRMED.




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