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United States v. Dominic Howard ( 2019 )


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  •      Case: 18-50783      Document: 00515107461         Page: 1    Date Filed: 09/06/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-50783                             FILED
Summary Calendar                    September 6, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DOMINIC HOWARD,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:18-CR-114-1
Before SMITH, DENNIS, and DUNCAN, Circuit Judges
PER CURIAM: *
Dominic Howard pleaded guilty to distribution of child pornography. He
was sentenced to a 120-month term of imprisonment. Howard appeals, raising
several challenges to his sentence.
As a preliminary matter, although the district court orally referred to its
sentence as an upward departure, the written Statement of Reasons (SOR)
indicates that the sentence was an upward variance.                  See United States
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50783    Document: 00515107461     Page: 2   Date Filed: 09/06/2019
No. 18-50783
v. Smith,
    440 F.3d 704
    , 706-07 (5th Cir. 2006). We resolve the ambiguity by
concluding that the sentence should be considered an upward variance based
on a consideration of the entire record, including particularly the district
court’s reference to the sentencing factors of 18 U.S.C. § 3553(a) rather than
§ 3553(b), and the district court’s focus on the offense conduct. See United
States v. Martinez,
    250 F.3d 941
    , 942 (5th Cir. 2001).
Howard argues that the district court’s written explanation was
insufficient. To the extent he contends that the district court failed to comply
with U.S.S.G. § 4A1.3(c)(1), p.s., his argument fails because that provision
applies only to departures based on the inadequacy of a defendant’s criminal
history category; it therefore is inapplicable here because the district court
imposed a variance. See United States v. Mejia-Huerta,
    480 F.3d 713
    , 723 (5th
Cir. 2007). Further, although the district court might have been more specific
in its written SOR, the district court gave clear statements at sentencing
regarding the “explicit” and “threatening” nature of Howard’s offense conduct
and adopted the Presentence Report (PSR), which set forth the details of the
offense conduct and noted that an upward variance might be warranted.
Therefore, Howard’s challenge to the sufficiency of the written reasons under
§ 3553(c) fails. See United States v. Zuniga-Peralta,
    442 F.3d 345
    , 348-49 (5th
Cir. 2006).
Because Howard’s general objection to the reasonableness of his
sentence was not sufficiently specific, plain error review applies to his Sixth
Amendment challenge. See United States v. Hernandez,
    64 F.3d 179
    , 181 (5th
Cir. 1995). In any event, because the Sentencing Guidelines are advisory only
following United States v. Booker,
    543 U.S. 220 
    (2005), Howard fails to show
any error at all, let alone plain error, as to his Sixth Amendment claim. See
United States v. Mares,
    402 F.3d 511
    , 519 (5th Cir. 2005).
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No. 18-50783
Finally, Howard contends that his sentence is unreasonable.             In
conjunction with this argument, he asserts that the Government did not prove
the facts underlying his sentence by a preponderance of the evidence, and he
contends that the district court abused its discretion by basing its sentence on
such facts.
Because Howard presented no rebuttal evidence, the information in the
PSR was presumed to be reliable and the district court did not err in adopting
it. See United States v. Gomez-Alvarez,
    781 F.3d 787
    , 796 (5th Cir. 2015). We
have affirmed similar or greater upward variances or departures based on the
§ 3553(a) factors. See, e.g., United States v. Hebert,
    813 F.3d 551
    , 562-63 (5th
Cir. 2015) (affirming upward variance to 92 years from a guidelines sentence
of “six to seven years”); United States v. Brantley,
    537 F.3d 347
    , 348 (5th Cir.
2008) (upholding an upward departure or variance to 180 months where the
maximum guidelines sentence was 51 months); United States v. Smith,
    417 F.3d 483
    , 491-93 (5th Cir. 2005) (upholding a 120-month upward departure
sentence where the maximum guidelines sentence was 41 months). Howard
has not shown that the district court abused its discretion and imposed a
substantively unreasonable sentence. See
    Smith, 440 F.3d at 707-08
    .
AFFIRMED.
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