United States v. Thompson ( 2023 )

Case: 22-20232 Document: 00516631028 Page: 1 Date Filed: 02/01/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-20232 February 1, 2023
Summary Calendar
Lyle W. Cayce
____________
Clerk
United States of America,
Plaintiff—Appellee,
versus
Broderick John Thompson,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CR-462-1
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Broderick John Thompson pleaded guilty to being a felon in
possession of a firearm and possession with intent to distribute
methamphetamine. On appeal, he argues that the district court procedurally
erred by departing upward under U.S.S.G. § 4A1.3, p.s., to impose
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20232 Document: 00516631028 Page: 2 Date Filed: 02/01/2023
No. 22-20232
concurrent 90-month sentences, and he asserts that there is a clerical error
in the written judgment.
Thompson’s lenient prior sentences and continuous criminal activity
were proper factors for the district court to consider when departing upward
under § 4A1.3. See United States v. Lavalais, 960 F.3d 180, 189 (5th Cir.
2020). The district court did not procedurally err by going beyond the
categories of information listed under § 4A1.3(a)(2), see Lavalais, 960 F.3d at
189; United States v. Cantu-Dominguez, 898 F.2d 968, 970 (5th Cir. 1990),
and the fact that all of Thompson’s adult criminal convictions received
criminal history points did not preclude the district court from finding that
his criminal history category substantially underrepresented his risk of
recidivism, see § 4A1.3(a)(1) & comment. (backg’d.). His reliance on United
States v. Martinez-Perez, 916 F.2d 1020 (5th Cir. 1990), to show procedural
error is unavailing because the district court here articulated valid reasons for
departing upward under § 4A1.3.
However, we agree with the parties that there is a clerical error in
Thompson’s written judgment that may be corrected under Federal Rule of
Criminal Procedure 36. See United States v. Cooper, 979 F.3d 1084, 1088-89
(5th Cir. 2020). The written judgment states that the felon-in-possession
offense ended on February 19, 2019, but this date conflicts with the
indictment, which states that this offense occurred on February 19, 2021.
For the foregoing reasons, we AFFIRM the judgment of the district
court but REMAND the case for correction of the judgment under Rule 36
to reflect that the felon-in-possession charge ended on February 19, 2021.
2