United States v. Cano

United States Court of Appeals
for the Fifth Circuit

No. 19-11297

United States of America,

Plaintiff—Appellee,

versus

Ernesto Lee Cano,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-131-1

Before Higginbotham, Smith, and Dennis, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Ernesto Lee Cano appeals the consecutive 24-month sentences he
received for violating the terms of his supervised release. Cano contends that
the district court imposed an unreasonable sentence by giving significant
weight to an improper sentencing consideration and ignoring a mitigating
fact. We affirm.
I.
In 2007, DEA agents discovered Cano unloading large amounts of
marijuana from a tractor trailer in El Paso. Cano was charged with possession
United States Court of Appeals
Fifth Circuit
FILED
December 2, 2020

Lyle W. Cayce
Clerk
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with intent to distribute more than 100 kilograms of marijuana and conspiracy
to do the same. Although Cano was initially released on bond, his bond was
later revoked when he failed to report to pretrial services or appear for trial.
Cano resurfaced in March 2009, when he reportedly turned himself in after
living in Northern Mexico. Upon his return, Cano pleaded guilty to the two
counts in his indictment and was sentenced to 80 months’ imprisonment
followed by four years of supervised release. Cano’s supervised release came
with standard conditions including that Cano would “not leave the judicial
district without permission of the court or purgation officer,” would “report
to the Probation Officer . . . within the first five days of each month,” and
would “notify the Probation Officer at least ten days prior to any change in
residence or employment.”
Cano began his supervised release in January 2014. In December 2014,
Border Patrol detained Cano as he attempted to enter Mexico at Fabens,
Texas. Cano’s probation officer, having been informed of this, instructed
Cano to report immediately because he had not obtained permission to leave
the jurisdiction. Cano did not report. Instead, he went again to Mexico, and
by May 2015, he informed his probation officer that he was living in
Chihuahua. Cano knew he was violating the terms of his release, but he
advised that “he was in Mexico to assist his wife whose ex-husband was
threatening to harm her due to a dispute regarding their children.” In April
2019, Cano contacted his parole officer to indicate that he would self-
surrender after his wife gave birth to their daughter. Cano was arrested by
U.S. Border Patrol on September 30, 2019, and on November 20, 2019, the
U.S. Attorney for the Western District of Texas moved to revoke Cano’s
supervised release.

Cano appeared for his revocation hearing and admitted the allegations
in the motion to revoke. The presentence report calculated Cano’s guideline
range as 3-9 months for each count, based on his “C” grade violation of his
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release and his criminal history of 1. Cano’s counsel sought the guideline-
minimum three months for each count. Cano and his counsel explained that
he had absconded to Mexico to support his family and prevent his sons from
being recruited by drug cartels. Cano also noted that he had remained in
contact with U.S. law enforcement while in Mexico and had voluntarily
surrendered.
The district court observed that Cano had previously absconded while
out on bond and commented “so apparently you don’t have any regard for
the laws of the United States.” Cano’s counsel then clarified that Cano had
reportedly turned himself in on that occasion too. The district court
determined that a 24-month sentence for each count—an upward departure
from the guideline range—was necessary “for the objectives of sentencing as
outlined in 18 United States Code Section 3553(a) to be satisfied in this case,
as those objectives apply in a revocation context.” Cano appealed. He argues
that the district court improperly considered the need to promote respect for
the law in determining his sentence and ignored that Cano had previously
self-surrendered.
II.
The applicable standard of review depends on whether Cano properly
preserved the objections that form the basis for his appeal. If Cano preserved
his objections, then our review is the two-step “plainly unreasonable
inquiry,” in which we first ask whether the district court committed
“significant procedural error, such as failing to consider the [applicable]
factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence,” and then assess “the substantive
reasonableness of the sentence imposed under an abuse-of-discretion
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standard.”
1
If Cano did not preserve his objections, our review is for plain
error, and Cano “bears the burden to show (1) error (2) that is plain and
(3) that affects his substantial rights.”
2

“A party may preserve a claim of error by informing the court—when
the court ruling or order is made or sought—of the action the party wishes
the court to take, or the party’s objection to the court’s action and the
grounds for that objection.”
3
At the revocation hearing, Cano’s counsel
sought a 3-month sentence for each count and, after sentence was
pronounced, counsel stated that Cano “would object to the sentence as
procedurally and substantively unreasonable.” Thus, Cano preserved his
substantive-reasonableness objection.
4
Cano also arguably preserved his
objection to the court’s refusal to consider his pr ior self-surrender when
determining the appropriate sentence.
5
We will assume, without deciding,
that he did. But Cano did not object to the district court’s reliance on an
improper sentencing consideration—promoting respect for the law. We
review this objection for plain error.
6

1
United States v. Sanchez, 900 F.3d 678, 682 (5th Cir. 2018).
2
United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013) (internal quotations
omitted).
3
Fed R. Crim. P. 51(b).
4
Holguin-Hernandez v. United States, 140 S. Ct. 762, 766, 206 L. Ed. 2d 95 (2020).
5
“MR. ANTONIO: Yes, Your Honor. We would ask that you take in
consideration that he was in constant contact with probation and with the marshals while
he was there. I know the last person that was just sentenced got less time than Mr. Cano
did, and he wasn’t in contact with anybody, and he hadn’t -- he hadn’t self-surrendered,
hadn't turned himself in.”.
6
Cf. Warren, 720 F.3d at 332 (“At sentencing, Warren objected that his sentence
was above the guidelines range, but he made no objection on the specific grounds he now
raises. Our review, therefore, is for plain error.”).
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A.
When imposing sentence after revoking a term of supervised release,
a district court is restricted to considering only certain sentencing factors
referenced in 18 U.S.C. § 3583.
7
Permissible factors include “the nature and
circumstances of the offense and the history and characteristics of the
defendant,” as well as the need “to afford adequate deterrence to criminal
conduct. . . .”
8
Excluded from consideration are those factors listed in
§ 3553(a)(2)(A), “which allows a court to impose a sentence that reflects the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.”
9
When a factor listed in § 3553(a)(2)(A)
becomes a dominant factor in sentencing, the district court commits plain
error.
10

According to Cano, the district court clearly gave significant weight to
an improper factor—the need to promote respect for the law—because the
district court “cited only this one reason when explaining its decision to
impose two consecutive sentences” fifteen months above the high end of the
guideline range. This argument is based on the district court’s commentary
on Cano’s history of absconding, a history which left the district court with
the impression that Cano did not “have any regard for the laws of the United

7
See 18 U.S.C. § 3583(e) (directing the district court to consider “the factors set
forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
(a)(7)”).
8
18 U.S.C. §§ 3553(a)(1), (a)(2)(B).
9
United States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011).
10
United States v. Givens, 746 F. App’x 421, 422 (5th Cir.), cert. denied, 139 S. Ct.
2034, 204 L. Ed. 2d 233 (2019); United States v. Pinner, 655 F. App’x 205, 207 (5th Cir.
2016) (“After Miller, this court clarified that a sentencing error occurs when an
impermissible consideration is a dominant factor in the court's revocation sentence, but not
when it is merely a secondary concern or an additional justification for the sentence.”).
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States.” The revocation hearing transcript makes plain that the district court
was concerned by Cano’s earlier absconding from the jurisdiction. And the
logical inference from the colloquy is that this history motivated the district
court to depart upward from the guideline range. But the district court’s use
of Cano’s past absconding at sentencing is not plainly erroneous. “A
sentence imposed on revocation of supervised release punishes
a breach of trust for violating the conditions of supervision.”
11
And Cano’s
penchant for absenting himself from law enforcement’s jurisdiction is “‘the
conduct leading to the revocation’” of his supervised release, which the
court may “‘consider[] in measuring the extent of the breach of trust.’”
12

Under § 3583(e), the court was allowed to consider Cano’s conduct through
the lens of “the nature and circumstances of the offense and the history . . .
of the defendant,” as well as the need “to afford adequate deterrence to
criminal conduct.”
13
The district court’s reliance on Cano’s absconding in
pronouncing sentence was not itself plain error.
The passing reference to Cano’s lack of respect for the law does not
make it plain that the district court impermissibly used Cano’s history of
absconding.
14
To show plain error, Cano must demonstrate that the
impermissible consideration affected his substantial rights, which here means
“show[ing] a reasonable probability that, but for the district court’s error,

11
United States v. Daughenbaugh, 793 F. App’x 237, 240 (5th Cir. 2019).
12
United States v. Rivera, 797 F.3d 307, 309 (5th Cir. 2015) (quoting U.S.S.G. Ch.
7, Pt. A, intro. comment. (U.S. Sentencing Comm’n 2014)).
13
18 U.S.C. §§ 3553(a)(1), (a)(2)(B); see also 18 U.S.C. § 3583(e) (directing the
district court to consider the factors “in section 3553(a)(1), (a)(2)(B).”).
14
United States v. Antrim, 681 F. App’x 329, 333 (5th Cir. 2017) (“We have held
that recitation of these impermissible factors without more does not result in plain error.”).
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[he] would have received a lower sentence.”
15
In passing sentence, the
district court stated “I don’t think a sentence any less than that would
adequately and appropriately address all the factors the Court should
consider in sentencing under 18 United States Code Section 3553(a).” “The
court’s references to the factors that ‘should’ be considered indicate that the
court limited its decision to the § 3553(a) factors enumerated in § 3583(e).”
16

As explained above, a defendant’s history is one of the factors that informs
sentencing when supervised release is revoked. Here, whether the district
court was attempting to promote respect for the law by varying upward is
uncertain. And Cano’s speculation is insufficient to show plain error because
this Court is unable to say, with reasonable probability, that Cano would have
received a lower sentence absent the asserted error.
17

B.
Cano argues that his sentence was unreasonable because the district
court failed to account for his first self-surrender after he absconded while on
bond. A revocation sentence “is substantively unreasonable if it (1) does not
account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.”
18
Because we assume
Cano preserved his objection, we review the sentence’s substantive

15
United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010).
16
United States v. Calender, 500 F. App’x 330 (5th Cir. 2012).
17
United States v. Tovar, 480 F. App’x 345, 349 (5th Cir. 2012) (“Although the
court specifically cited Tovar’s recidivism when it imposed her revocation sentence, it is
unclear whether this reflects the court’s intent to punish Tovar or instead its desire to
afford adequate deterrence and to protect the public, as it stated at other times during the
sentencing hearing. Tovar cannot satisfy her burden by relying upon such ambiguity or
uncertainty in the record.”).
18
Warren, 720 F.3d at 332.
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reasonableness for an abuse of discretion, examining the totality of the
circumstances.
19
Our review is “highly deferential, because the sentencing
court is in a better position to find facts and judge their import.”
20
“If we find
the sentence unreasonable, we may reverse the district court only if we
further determine ‘the error was obvious under existing law.’”
21

Cano argues that his sentence is substantively unreasonable because
“the district court considered [his] history and characteristics . . . in a way
that overlooked the fact of Mr. Cano’s self-surrender from his first time
absconding.” As the district court reviewed Cano’s history, defense counsel
interjected to explain that, after absconding for two years while facing drug
trafficking charges, Cano had turned himself in. To which the district court
responded “I don’t have any evidence of that. . . . The Presentence Report
says that he was -- an arrest warrant was executed, and he was arrested, is the
information I have. I don’t have any information that he self-surrendered.”
As Cano now points out, the Presentence Report indicates that Cano “stated
he turned himself into [sic] federal officials” after absconding. Cano contends
this alleged mitigating fact was entitled to “significant weight” because “the
history of absconding was at the front of the district court’s mind when
calculating the revocation sentence.”
Cano is correct that § 3583(e) directs the district court to consider,
among other things, the defendant’s history when imposing a sentence after
revoking supervised release.
22
Here, it is clear the district court considered
Cano’s history. But the presentence report indicates that the district court

19
Id.
20
United States v. Fraga, 704 F.3d 432, 439 (5th Cir. 2013).
21
Warren, 720 F.3d at 326 (quoting Miller, 634 F.3d at 843).
22
18 U.S.C. § 3583(e).
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was at least partially mistaken, in that the report does briefly reference
Cano’s alleged self-surrender. If it was error for the district court not to
consider Cano’s first self-surrender, the error was not an obvious one. Cano
offers us no case illustrating as much. A revocation sentencing is “relatively
informal” and “a defendant facing revocation is not owed ‘the full panoply
of rights due a defendant in’ a criminal prosecution.”
23
“What is needed is
an informal hearing structured to assure that the finding of a parole
violation will be based on verified facts and that the exercise of discretion will
be informed by an accurate knowledge of the parolee’s behavior.”
24
The
presentence report does not verify the truth of Cano’s allegation that he
turned himself in, it merely repeats his allegation. To the extent the district
court premised its upward variance on Cano’s absconding, that premise was
accurate.
25
Further, the district court heard Cano’s in-court statement that
he had turned himself in after his most recent hiatus abroad and implicitly
found that this fact did not mitigate Cano’s decision to abscond for over four
years. We hold that the district court’s failure to consider Cano’s first alleged
self-surrender does not warrant reversal here.
Nor does the upward variance from the guidelines call into doubt the
reasonableness of the sentence.
26
It was within the district court’s discretion
to find that Cano’s “absconding from supervision and failing to abide by the

23
Warren, 720 F.3d at 329 (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)).
24
Morrissey, 408 U.S. at 484.
25
“THE COURT: Mr. Antonio, this defendant has been an absconder for some
period of time? MR. ANTONIO: Yes, Your Honor.”
26
United States v. Smith, 676 F. App’x 349, 350 (5th Cir. 2017) (listing cases).
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terms of the supervision were serious violations, meriting a significant
punishment.”
27

The judgment of the district court is affirmed.

27
United States v. Scicutella, 478 F. App’x 818, 820 (5th Cir. 2012).

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