United States v. Wilson ( 2022 )

Case: 21-30547 Document: 00516303545 Page: 1 Date Filed: 05/02/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 2, 2022
No. 21-30547
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Danny Ray Wilson,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:20-CR-295-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Danny Ray Wilson pleaded guilty to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). The presentence
report (PSR) identified “criminal history adequacy” as a basis for an upward
departure under U.S.S.G. § 4A1.3 because Wilson had an “egregious, serious
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-30547 Document: 00516303545 Page: 2 Date Filed: 05/02/2022
No. 21-30547
criminal record” and because he “pose[d] a violent risk to the public.” The
district court departed from the recommended guidelines range of 41 to 51
months and imposed a sentence of 72 months of imprisonment.
Wilson argues on appeal that his 72-month sentence is substantively
unreasonable. Specifically, he argues that in departing from the guidelines
range under § 4A1.3, the district court ignored the fact that he had already
received criminal history points for his prior criminal convictions and gave
significant weight to conduct underlying charges that were pending or had
been dismissed. The district court’s decision to impose an upward
departure, as well as the extent of that departure, are reviewed for an abuse
of discretion. United States v. Zelaya-Rosales, 707 F.3d 542, 546 (5th Cir.
2013).
At sentencing, the district court explained that reliable information
suggested that Wilson’s criminal history category substantially
underrepresented the seriousness of his criminal history and his likelihood of
recidivism. See § 4A1.3(a)(1). The court then recounted Wilson’s lengthy
criminal history, which included felony convictions for obstruction of justice
and illegal possession of a firearm, as well as two felony burglary convictions,
a felony conviction for illegal use of a dangerous weapon, and a misdemeanor
conviction for violating a protective order, which involved Wilson’s wife.
Wilson is correct that each of these convictions received criminal history
points, but the district court was nonetheless entitled to find that Wilson’s
criminal history score, and the resulting criminal history category of VI, did
not adequately reflect the seriousness of his conduct or his risk of recidivism.
See § 4A1.3(a)(1).
The district court also found the guidelines sentence inadequate based
on Wilson’s unscored criminal history, which included charges that were
pending or had been dismissed. “It is well-established that prior criminal
2
Case: 21-30547 Document: 00516303545 Page: 3 Date Filed: 05/02/2022
No. 21-30547
conduct not resulting in a conviction may be considered by the sentencing
judge.” United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).
Wilson complains that the district court erred in relying on
unadjudicated conduct because “the PSR makes no attempt to explain why
the charges were dismissed.” Without such information, Wilson argues, the
district court could not determine “whether the allegations of fact contained
in the charges were reliable.” Wilson, however, filed no objections to the
PSR and did not otherwise challenge any of the facts underlying his dismissed
or pending charges. “Because no testimony or other evidence was submitted
to rebut the information in the PSR, the district court was free to adopt the
PSR’s findings without further inquiry or explanation.” United States v.
Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010). Further, as Wilson
acknowledges, the PSR’s factual allegations underlying the dismissed and
pending charges were drawn from police reports, and this court has held that
“the district court may properly find sufficient reliability on a [PSR] which is
based on the results of a police investigation.” United States v. Vela, 927 F.2d
197, 201 (5th Cir. 1991).
Based on the foregoing, the judgment of the district court is
AFFIRMED.
3