United States v. Daniel Francis ( 2016 )

Case: 14-31434 Document: 00513669407 Page: 1 Date Filed: 09/08/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-31434
Fifth Circuit
FILED
Summary Calendar September 8, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
DANIEL PAUL FRANCIS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:12-CR-146-9
Before JONES, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
Daniel Paul Francis appeals the sentence imposed after he pleaded
guilty to conspiring to introduce a misbranded synthetic cannabinoid, AM-
2201, into interstate commerce. See 18 U.S.C. § 371; 21 U.S.C. §§ 331, 333,
352. Francis contends that the court erred by finding AM-2201 to be most
closely related to Tetrahydrocannabinol, Synthetic (THC), and by applying a
1:167 ratio of AM-2201 to marijuana to calculate the relevant drug quantity.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-31434
He also argues that the district court improperly limited the degrees of his
U.S.S.G. § 5K1.1 sentence reduction by considering a factor unrelated to his
assistance.
In a related case arising from the same criminal scheme, we recently
affirmed the THC is the most closely related drug to AM-2201 and that the
court did not err by applying the 1:167 ratio. Francis’s drug-quantity claims
lack merit. See United States v. Malone, ___F.3d___, 2016 WL 3627319, *4-*5
(5th Cir. July 6, 2016).
As to Francis’s claim that the district court erred by considering his
minor role as a factor affecting his § 5K1.1 reduction, we review only for plain
error because Francis did not alert the court to the possible error in order to
give the court a chance to amend the reduction or to clarify its reasons. See
United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). To show plain error,
Francis must show a forfeited error that was “clear or obvious, rather than
subject to reasonable dispute” and that the error affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does, this court
has the discretion to correct the error if it seriously affected the integrity,
fairness, or public reputation of the proceedings. Id. To show that an error
affected his substantial rights pertaining to his sentence, Francis must show
“a reasonable probability that, but for the district court’s error, [he] would have
received a lower sentence.” United States v. Davis, 602 F.3d 643, 647 (5th Cir.
2010).
“District courts have almost complete discretion to determine the extent
of a departure under § 5K1.1.” United States v. Hashimoto, 193 F.3d 840, 843
(5th Cir. 1999). Nonetheless, “the extent of a § 5K1.1 or [18 U.S.C.] § 3553(e)
departure must be based solely on assistance-related concerns.” United States
v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006). The court told Francis that the
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No. 14-31434
30% reduction under § 5K1.1 was “based not only on [his] cooperation, but on
[his] relative culpability with the other defendants and the other factors.” If
we assume without deciding that the court committed a clear and obvious error
by possibly conflating the § 3553(a) factors with assistance factors, we
nonetheless conclude that Francis has not shown that any error affected his
substantial rights. The district court’s mention of Francis’s “relative
culpability” in the context of the reduction is ambiguous and does not mandate
an inference that the court intended Francis’s role reduction to limit further
reduction. Thus, the record does not establish that, but for the alleged
consideration of an improper factor, Francis would have received a lesser
sentence. See Davis, 602 F.3d at 647; cf. Malone, 2016 WL 3627319 at *6
(finding no plain error where the district court merely “muddled the steps” in
formulating the sentence).
The judgment is AFFIRMED.
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