United States v. Ortiz

* 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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 25, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10431
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO ORTIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-64-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
The district court revoked Ernesto Ortiz’s supervised release,
and he was sentenced to serve 23 months in prison and 36 months on
supervised release. Ortiz appeals his sentence. He argues that
his sentence is unreasonable because it exceeded the advisory
guideline range and because the district court failed to provide
sufficient reasons for the sentence. He requests this court to
vacate his sentence and remand the case for resentencing.

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No. 06-10431
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The Government has moved for dismissal of the appeal or for
summary affirmance on the ground that this court lacks jurisdiction
to consider Ortiz’s appeal under 18 U.S.C. § 3742(a)(4). In a
recent unpublished decision, United States v. Rivera-Cerda, 200 F.
App’x 372, 372 (5th Cir. 2006), we pretermitted this question
because the merits were clear, citing United States v. Weathersby,
958 F.2d 65, 66 (5th Cir. 1992). Weathersby, in turn, relied on
Norton v. Mathews, 427 U.S. 524 (1976) for that theory of
hypothetical jurisdiction, but the Supreme Court rejected the
theory of hypothetical jurisdiction, and distinguished Norton, in
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94
(1998). Hence we must decide the jurisdictional question.
We plainly have jurisdiction. The Government argues that we
lack jurisdiction because Ortiz claims only that his sentence on
revocation of release was “unreasonable,” not “plainly
unreasonable.” For this proposition it cites United States v.
DiMarco, 46 F.3d 476, 477 (5th Cir. 1995), where we outlined the
four bases for jurisdiction to review a sentence, only one of which
might apply here: we can review a sentence for plain
unreasonableness if there are no sentencing guidelines, as is the
case on revocation of supervised release. Post-Booker, of course,
we can review sentences - at least post-conviction sentences - for
Booker reasonableness, a fact not countenanced in DiMarco. In one
published, United States v. Hinson, 429 F.3d 114 (5th Cir. 2005),
and three unpublished cases, United States v. Sherman, No. 05-
10731, 2007 WL 43419 (5th Cir. Jan. 8, 2007); United States v.
Neal, No. 05-20924, 2007 WL 26833 (5th Cir. Jan. 4, 2007); United

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No. 06-10431
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States v. Weese, 199 F. App’x 394 (5th Cir. 2006), we have declined
to decide whether, post-Booker, we now review sentences on
revocation of supervised release for plain unreasonableness or
Booker unreasonableness, because all four sentences survived the
latter, more exacting standard. We still haven’t decided the
question. Hence we have jurisdiction to review Ortiz’s sentence -
using one of the two standards of review - and we won’t require
Ortiz to talismanically cite “plain unreasonableness,” even were we
to conclude that was the appropriate standard, to conclude that we
have jurisdiction. As in the four above cases, we have
jurisdiction here. The Government’s motion for dismissal of the
appeal or for summary affirmance is therefore denied.
As in the above cases, however, resolution of the plain
unreasonableness/Booker unreasonableness issue is not needed to
dispose of this appeal because Ortiz has not shown that he should
prevail under the stricter Booker standard. Ortiz’s sentence
exceeded the recommended guidelines sentence but not the pertinent
statutory maximum sentence. Further, a review of the record
demonstrates that the district court considered the relevant
sentencing factors, most notably Ortiz’s persistent use of cocaine.
See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006);
Hinson, 429 F.3d at 120. Consequently, the sentence was neither
unreasonable nor plainly unreasonable.
AFFIRMED; MOTION FOR DISMISSAL OR SUMMARY AFFIRMANCE DENIED;
ALTERNATIVE REQUEST FOR EXTENSION OF TIME DENIED AS UNNECESSARY.

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