United States v. David Cox ( 2015 )

Case: 15-30342 Document: 00513302400 Page: 1 Date Filed: 12/10/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-30342 FILED
Summary Calendar December 10, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID E. COX,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:14-CR-104
Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM: *
David E. Cox appeals the concurrent 37-month sentences imposed
following his guilty plea convictions for two counts of possession of a firearm
by a convicted felon. Cox argues that the district court committed procedural
error in imposing an upward departure under U.S.S.G. § 4A1.3. Cox’s
presentence report calculated a guidelines range using a Category IV criminal
history score, and Cox argues that the court failed to explain why a Category
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-30342 Document: 00513302400 Page: 2 Date Filed: 12/10/2015
No. 15-30342
V criminal history score was inadequate when it departed to a range based on
a Category VI criminal history score. Because Cox did not present this
argument to the district court, we review for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
Section 4A1.3(a)(1) provides that, where “reliable information indicates
that the defendant’s criminal history category substantially under-represents
the seriousness of the defendant’s criminal history or the likelihood that [he]
will commit other crimes, an upward departure may be warranted.” Though
the district court did not explicitly state its reasons for rejecting a guidelines
range with a Category V criminal history score, the court gave extensive
reasons that made clear why it found the intermediate Category V score
inadequate. Thus, Cox does not show clear or obvious error. See United States
v. Zuniga-Peralta, 442 F.3d 345, 348 n.2 (5th Cir. 2006). Moreover, even if the
error was clear or obvious, Cox does not show a reasonable probability that he
would have received a lesser sentence but for the district court’s lack of
explanation. See United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010).
The judgment of the district court is AFFIRMED.
2