United States v. Cook ( 2022 )

Case: 21-10387 Document: 00516170971 Page: 1 Date Filed: 01/18/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 18, 2022
No. 21-10387 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Michael Wayne Cook,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:20-CR-48-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Michael Wayne Cook appeals the 293-month, within-guidelines range
sentence imposed upon his guilty plea conviction for attempted enticement
of a minor. He contends that the district court plainly erred by applying
U.S.S.G. § 4B1.5 to increase his guidelines range because his prior Texas
*
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opinion should not be published and is not precedent except under the limited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.
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No. 21-10387
convictions for aggravated sexual assault of a child are not categorical
“covered sex crimes” as defined in the Guidelines commentary. The
Government moves for summary affirmance, arguing that Cook’s ability to
show that any plain error in applying § 4B1.5 affected his substantial rights or
seriously affects the fairness, integrity, or public reputation of judicial
proceedings is foreclosed by the district court’s statement that it would have
imposed the same sentence irrespective of the guidelines. Alternatively, the
Government moves for a 30-day extension of time in order to file a merits
brief. Cook opposes the motion for summary affirmance.
Summary affirmance is proper where, among other instances, “the
position of one of the parties is clearly right as a matter of law so that there
can be no substantial question as to the outcome of the case.” Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). This court’s
summary affirmance procedure is most appropriate for cases in which the
parties concede that the issues are foreclosed by circuit precedent. See United
States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010) (noting the denial of
summary affirmance where an issue was not foreclosed); United States v.
Lopez, 461 F. App’x 372, 374 & n.6 (5th Cir. 2012).
Cook’s challenge to his sentence entails a more involved analysis of an
issue not foreclosed by precedent, thus we decline to grant summary
affirmance. See United States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010)
(noting the denial of summary affirmance where an issue was not foreclosed).
Specifically, we have not yet decided whether a conviction under Texas’s
aggravated sexual assault statute qualifies as a categorical “sex offense
conviction” for purposes of § 4B1.5. Nonetheless, we may resolve the appeal
without additional briefing. See United States v. Bailey, 924 F.3d 1289, 1290
(5th Cir. 2019) (denying summary affirmance, dispensing with further
briefing, and affirming).
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No. 21-10387
First, because Cook did not object to the district court’s application
of § 4B1.5, review is for plain error. United States v. Wikkerink, 841 F.3d 327,
331 (5th Cir. 2016) (reviewing for plain error district court’s unobjected-to
application of § 4B1.5). To prevail on plain error review, Cook must identify
(1) a forfeited error (2) that is clear or obvious, rather than subject to
reasonable dispute, and (3) that affects his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). If he satisfies the first three
requirements, this court may, in its discretion, remedy the error if the error
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
Cook’s challenge to his sentence is fatally flawed because he cannot
show an effect on his substantial rights. See Molina-Martinez v. United States,
578 U.S. 189, 200-01 (2016). Generally, where “the record is silent as to what
the district court might have done had it considered the correct Guidelines
range, the court’s reliance on an incorrect range in most instances will suffice
to show an effect on the defendant’s substantial rights.” Molina-Martinez v.
United States, 578 U.S. 189, 201 (2016). However, in some cases, “the record
. . . may show, for example, that the district court thought the sentence it
chose was appropriate irrespective of the Guidelines range.” Id. at 200; see
also United States v. Sanchez-Hernandez, 931 F.3d 408, 411 (5th Cir. 2019)
(stating that while Molina-Martinez “predicted erroneous Guidelines ranges
will normally suffice to satisfy the third prong,” it also “recognized that
won’t always be the case”).
Here, the record is far from “silent as to what the district court might
have done had it considered the correct Guidelines range.” Molina-Martinez,
578 U.S. at 201. The district court offered “a detailed explanation of the
reasons the [293-month] sentence was appropriate” under the § 3553(a)
factors. Id. at 200. The court stated that it would impose the same sentence
irrespective of the guidelines range because the “level of dangerousness” and
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No. 21-10387
Cook’s “repeat targeting of children is just incredibly dangerous and
incredibly serious.” The court noted that it had even considered an upward
variance, specifically identifying aggravating factors such as the incredibly
serious nature of the instant offense; Cook’s history of sexual assaults against
minors; his history of sex offense convictions, including aggravated sexual
assault and failure to comply with sex offender requirements; the failure of
more lenient prior sentences to deter his conduct; and Cook’s admissions to
having previously sought out and groomed minors for sexual activity online
as justifications for his sentence. In short, the district court adequately
explained in detail its determination that Cook’s 293-month sentence was
justified under the 18 U.S.C. § 3553(a) factors irrespective of any Guidelines
error.
Thus, Cook has failed to show plain error. See Puckett, 556 U.S. at
135; see also United States v. Garcia Miguel, 829 F. App’x 36, 39-40 (5th Cir.
2020) (finding no effect on the defendant’s substantial rights where the
district court based the sentence on the § 3553(a) factors rather than on the
incorrectly calculated Guidelines range); United States v. Andrews, 768 F.
App’x 189, 193-94 (5th Cir. 2019) (same).
The Government’s motion for summary affirmance and its alternative
motion for an extension of time to file a merits brief are each DENIED. The
judgment is AFFIRMED.
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