     Case: 18-50660      Document: 00514994835         Page: 1    Date Filed: 06/13/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                  United States Court of Appeals

                                    No. 18-50660
                                                                           Fifth Circuit

                                                                         FILED
                                  Summary Calendar                   June 13, 2019
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


                                                 Plaintiff-Appellee

v.

REGINALD CHRISTOPHER GILBERT,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:11-CR-16-3


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       In 2011, Reginald Christopher Gilbert pleaded guilty to conspiracy to
possess with intent to distribute and to distribute 28 grams or more of cocaine
base and a substance containing a detectable amount of marijuana, aiding and
abetting the distribution of 28 grams or more of cocaine base; and attempting
to distribute 28 grams or more of cocaine base. He was sentenced to 60 months
of imprisonment on each count, to be served concurrently, and five years of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50660      Document: 00514994835      Page: 2    Date Filed: 06/13/2019


                                   No. 18-50660

supervised release on each count, to be served concurrently. After Gilbert
began serving his supervised release term in 2014, his supervised release was
revoked four times.
      In 2018, Gilbert’s supervised release was again revoked, and he was
sentenced to the statutory maximum term of 36 months of imprisonment with
no additional term of supervised release. Gilbert appeals the sentence, arguing
that it is plainly unreasonable because the district court improperly considered
the retributive factors in 18 U.S.C. § 3553(a)(2)(A). He also asserts that the
sentence is greater than necessary to achieve the goals of § 3553(a).
      Because Gilbert did not raise these arguments in the district court,
review on appeal is limited to plain error. See United States v. Whitelaw, 580
F.3d 256, 259-60 (5th Cir. 2009). To prevail on plain error review, Gilbert must
identify (1) a forfeited error (2) that is clear or obvious, and (3) that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes such a showing, this court may, in its discretion, remedy the error if it
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.”      Id. (internal quotation marks and citation omitted).
      Reversible     error   regarding   the   improper      consideration   of   the
§ 3553(a)(2)(A) factors is found only when a district court’s “dominant” reason
for imposition of a revocation sentence was a factor listed in § 3553(a)(2)(A),
but not if the factor was a secondary concern or an additional reason for the
sentence. United States v. Rivera, 784 F.3d 1012, 1016-17 (5th Cir. 2015). A
review of the record indicates the district court did not improperly consider the
§ 3553(a)(2)(A) factors when imposing Gilbert’s revocation sentence. Although
the court stated that it did not believe Gilbert would comply with supervised
release conditions and that the court should move on and use its resources to
help other people, the court did not improperly refer to any of the



                                         2
    Case: 18-50660    Document: 00514994835        Page: 3   Date Filed: 06/13/2019


                                 No. 18-50660

impermissible factors in § 3553(a)(2)(A), such as the need to consider the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense. The district court considered permissible factors,
including Gilbert’s history of repeated supervised release violations that
resulted in four prior revocations and did not expressly consider any of the
impermissible factors. See United States v. Sanchez, 900 F.3d 678, 684-85 (5th
Cir. 2018). Because there is nothing specific in the record “to plausibly suggest
that the district court based its sentence on the need for retribution,” Gilbert
has not shown the district court’s imposition of the sentence constituted plain
error. Id. at 685; see Puckett, 556 U.S. at 135.
      Further, Gilbert has not shown that the sentence was greater than
necessary to achieve the § 3553(a) goals. The sentence did not exceed the 36-
month statutory maximum sentence, and this court has repeatedly affirmed
revocation sentences that exceed the policy statement range but do not exceed
the statutory maximum sentence. See Whitelaw, 580 F.3d at 265; United
States v. Richardson, 455 F. App’x 410, 411 (5th Cir. 2011). Gilbert has not
shown that the district court’s imposition of the sentence constituted plain
error. See Whitelaw, 580 F.3d at 265; Richardson, 455 F. App’x at 411.
      AFFIRMED.




                                        3
