United States v. Kimbrough ( 2022 )

Case: 21-30102 Document: 00516191381 Page: 1 Date Filed: 02/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-30102 February 3, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Robert T. Kimbrough,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:19-CR-365-1
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam:*
Robert T. Kimbrough entered a conditional plea of guilty to
possessing a firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1), and to possessing a firearm with an obliterated serial number, in
violation of 18 U.S.C. § 922(k). He was sentenced to, inter alia, a within-
*
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opinion should not be published and is not precedent except under the limited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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Sentencing-Guidelines term of 120 months’ imprisonment. He challenges:
the district court’s declining to suppress evidence of the firearms that formed
the basis of his convictions; the procedural reasonableness of his sentence;
and its substantive reasonableness.
As for Kimbrough’s suppression challenge, the firearms were found
pursuant to a search of his girlfriend’s apartment, following her verbal and
written consent. She and the four law enforcement officers involved in the
search testified at a suppression hearing. The court found, inter alia, the
girlfriend’s testimony about her encounter with the officers generally was not
credible. As he did in district court, Kimbrough contends: his girlfriend’s
consent was not voluntary; and, therefore, the firearms should have been
suppressed.
Evidence from a suppression hearing is viewed in the light most
favorable to the prevailing party, United States v. Cantu, 230 F.3d 148, 150
(5th Cir. 2000), affording special deference to factual findings made based on
live testimony, see United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005).
Six factors are used for deciding whether consent was voluntarily given: the
custodial status of the person giving consent; whether law enforcement used
coercive procedures; to what extent and level the person giving consent
cooperated with law enforcement; the person’s “awareness of his right to
refuse consent”; the person’s intelligence and education; and the person’s
“belief that no incriminating evidence will be found”. United States v. Wise,
877 F.3d 209, 222 (5th Cir. 2017) (concluding interactions with law
enforcement consensual).
Citing facts based on the suppression-hearing testimony, the court
found: each of the above-mentioned voluntariness factors weighed in the
Government’s favor; and the girlfriend’s consent was valid. Viewing the
suppression-hearing evidence in the requisite light most favorable to the
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Government, as the prevailing party, the court’s findings about the
girlfriend’s credibility and the validity of her consent were not clearly
erroneous. See United States v. Olivier-Becerril, 861 F.2d 424, 425–26 (5th
Cir. 1988) (holding court did not clearly err in finding automobile search was
voluntary).
Kimbrough also raises two other suppression challenges for the first
time on appeal. Because he did not raise them in district court, review is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Under that standard, he must show a forfeited plain error (clear or
obvious error, rather than one subject to reasonable dispute) that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes that showing, we have the discretion to correct the reversible plain
error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.First, Kimbrough contends: the suitcase and backpack in which the
firearms were found were his; and, therefore, even if his girlfriend had
authority to consent to the search of her apartment, she lacked the authority
to consent to a search for those two items. Kimbrough maintains that his
girlfriend told officers that the suitcase and backpack were not hers. It is not
clear from the record whether the girlfriend disavowed ownership of the
suitcase and backpack, or whether she disavowed only ownership of the
firearms and drugs that were found in them. Even assuming she disavowed
ownership of the suitcase and backpack, the record does not establish
whether she did so before, or after, the firearms were found. Accordingly,
Kimbrough cannot show the court committed reversible plain error. See
United States v. Jaras, 86 F.3d 383, 389–90 (5th Cir. 1996) (concluding
individual lacked authority to consent to search of luggage located in
automobile’s trunk that individual specifically identified as defendant’s).
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Second, Kimbrough asserts the court failed to recognize that the
consent form the girlfriend signed was valid only for the search of a vehicle.
Even assuming the written, revised consent form was flawed, the court did
not commit reversible plain error because Kimbrough cannot show his
substantial rights were affected: The girlfriend also gave valid oral consent
to search her residence.
Kimbrough next challenges both the procedural and substantive
reasonableness of his sentence. Although post-Booker, the Sentencing
Guidelines are advisory only, the district court must avoid significant
procedural error, such as improperly calculating the Guidelines sentencing
range. Gall v. United States, 552 U.S. 38, 46, 51 (2007). If no such procedural
error exists, a properly preserved objection to an ultimate sentence is
reviewed for substantive reasonableness under an abuse-of-discretion
standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 750, 751–53
(5th Cir. 2009). In that respect, for issues preserved in district court, its
application of the Guidelines is reviewed de novo; its factual findings, only for
clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th
Cir. 2008).
Turning first to Kimbrough’s procedural-reasonableness challenge,
the firearms and drugs found in the girlfriend’s apartment also formed the
basis for Kimbrough’s state firearm-and-drug charges. Kimbrough pleaded
guilty to those charges and was sentenced to: five years’ imprisonment on
the firearm charge; and four years’ on the drug charge. On the same day
Kimbrough was sentenced for those convictions, he was also sentenced, on
an unrelated state conviction for second-degree battery, to four years’
imprisonment. The state court ordered the three sentences to run
concurrently.
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In this case, the court sentenced Kimbrough to: 120 months’
imprisonment on the felon-in-possession count; and 60 months’
imprisonment on the possessing-a-firearm-with-an-obliterated-serial-
number count. The court ordered the federal sentences to run: concurrently
with one another; and consecutively to the three state sentences.
Kimbrough contends: Because the state firearm and drug sentences
were for conduct relevant to the federal offenses, the court should have
ordered his federal sentence to run concurrently, and not consecutively, with
his state sentences under Guideline § 5G1.3(b) (imposition of a sentence on
defendant subject to undischarged term of imprisonment or anticipated state
term of imprisonment). The parties dispute whether Kimbrough’s
procedural-reasonableness challenge is properly preserved.
No authority need be cited for the rule that we, not the parties, decide
the standard of review. In any event, for the reasons that follow, he cannot
show error in the court’s application of that Guideline; therefore, his claim
fails regardless of whether the issue was preserved. See United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008) (pretermitting resolution of
standard of review because challenge failed under any standard).
If a prison term results from an offense that is treated as relevant
conduct to the instant offense, the Guidelines dictate: the sentence for the
instant offense shall run concurrently with the remainder of the undischarged
prison term; and the court should adjust the sentence for time served on the
undischarged term if it determines that that time would not be credited by
the Bureau of Prisons. Guideline § 5G1.3(b). As the district court and both
parties recognized, a straightforward application of § 5G1.3(b) was
complicated by the fact that, at the time of Kimbrough’s federal sentencing,
he was also serving an undischarged four-year sentence for the unrelated
state battery offense. “Subsection (b) does not apply in cases in which the
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prior offense was not relevant conduct to the instant offense”. Guideline
§ 5G1.3, cmt. n.2(B) (emphasis added).
The language used by the court at sentencing makes clear that, instead
of sentencing Kimbrough under that Guideline, it sentenced him under the
policy statement in Guideline § 5G1.3(d). As relevant here, that Guideline
applies when: only part of the prior offense is relevant conduct; or the case’s
facts are complex and involve multiple undischarged sentences. Guideline
§ 5G1.3(d), p.s., & cmt. nn.2(A) & 4(D). A court may impose the sentence
for the instant offense “to run concurrently, partially concurrently, or
consecutively to the prior undischarged term of imprisonment to achieve a
reasonable punishment for the instant offense”. Guideline § 5G1.3(d), p.s.
Both the § 5G1.3(d) policy statement and the plain language of 18 U.S.C.
§ 3584 (multiple sentences of imprisonment) authorized the court to impose
the sentence as it did.
As for his substantive-reasonableness challenge, Kimbrough, noting
he received the maximum punishment on both of his federal convictions,
contends that his federal sentence’s being consecutive to his state sentence
for the same conduct effectively imposes a sentence that exceeds the
statutory maximum. As discussed above, review of this preserved challenge
is for abuse of discretion. See Gall, 552 U.S. at 51.
Kimbrough’s federal sentence was lawful and fell within the properly
calculated Guidelines sentencing range. See Gamble v. United States, 139 S.
Ct. 1960, 1964 (2019) (“[A] State may prosecute a defendant under state law
even if the Federal Government has prosecuted him for the same conduct
under a federal statute. Or the reverse may happen”.). Accordingly,
Kimbrough’s sentence receives a presumption of reasonableness that he fails
to rebut. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (noting
our “court applies a rebuttable presumption of reasonableness to a properly
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calculated, within-[G]uidelines sentence”); United States v. Candia, 454
F.3d 468, 473 (5th Cir. 2006) (holding “rebuttable presumption of
reasonableness also applies to a consecutive sentence imposed within the
parameters of the [Guidelines]”).
AFFIRMED.
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