United States v. Gollihugh ( 2022 )

Case: 21-11132 Document: 00516465658 Page: 1 Date Filed: 09/09/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-11132 September 9, 2022
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Danny Lee Gollihugh,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 5:21-CR-7-1
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Danny Gollihugh pleaded guilty of possessing an unregistered firearm
and was sentenced, above the advisory guidelines range, to 84 months of
imprisonment. Gollihugh contends that the district court erred in relying on
his pending criminal charges in determining that an upward variance was
*
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opinion should not be published and is not precedent except under the limited circum-
stances set forth in 5th Circuit Rule 47.5.4.
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No. 21-11132
warranted. In this regard, the presentence report (“PSR”) listed pending
criminal charges related to (1) harassment and menacing in Colorado, (2) a
shootout that was also considered relevant conduct for the instant offense,
(3) drug possession, and (4) firearm possession.
We assume, without deciding, that Gollihugh preserved his argu-
ments generally challenging the district court’s reliance on his pending
charges and, more specifically, questioning the evidence supporting his guilt
for his pending Colorado assault-related charges and his shootout-related
charges. See United States v. Rodriguez, 602 F.3d 346, 361 (5th Cir. 2010).
But because, in the district court, Gollihugh raised no specific argument
related to the reliability of the information supporting his drug and firearm
possession charges, we review those challenges for plain error only. See
United States v. Zarco-Beiza, 24 F.4th 477, 480–82 & n.4 (5th Cir. 2022).
To demonstrate plain error, Gollihugh must show, inter alia, a for-
feited error that is clear or obvious. See Puckett v. United States, 556 U.S. 129,
135 (2009). If he makes that showing, we have discretion to remedy the
error “only if [it] seriously affect[s] the fairness, integrity or public reputa-
tion of judicial proceedings.” Id. (internal quotation marks and citation
omitted).
We review claims of procedural error de novo and the district court’s
factual findings for clear error. United States v. Harris, 702 F.3d 226, 229
(5th Cir. 2012). “[S]entencing facts must be established by a preponderance
of the evidence.” United States v. Johnson, 648 F.3d 273, 277 (5th Cir. 2011).
“It is well-established that prior criminal conduct not resulting in a
conviction may be considered by the sentencing judge.” United States v.
Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). But “arrests, standing
alone, do not constitute reliable information for sentencing purposes.” John-
son, 648 F.3d at 276 (internal quotation marks, citation, and brackets omit-
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No. 21-11132
ted). “When the PSR also contains a factual recitation of the defendant’s
conduct that gave rise to a prior unadjudicated arrest,” the district court can
consider the information if “that factual recitation has an adequate evidenti-
ary basis with sufficient indicia of reliability.” Harris, 702 F.3d at 231. If the
factual recitation is sufficiently reliable, the defendant must offer rebuttal
evidence. Harris, 702 F.3d at 230. And “even when a PSR provides a more
detailed factual recitation of the conduct underlying an arrest, if that recita-
tion lacks sufficient indicia of reliability then it is error for the district court
to consider it at sentencing—regardless of whether the defendant objects or
offers rebuttal evidence.” United States v. Fields, 932 F.3d 316, 320 (5th Cir.
2019) (internal quotation marks and citation omitted).
The PSR contained detailed factual recitations of the events and
investigations leading to the pending charges. Thus, Gollihugh’s general
suggestion that the district court improperly relied merely on the fact that he
was arrested and charged with those offenses lacks merit. See Fields, 932 F.3d
at 320–24.
Gollihugh’s theories about his specific pending charges also fail. First,
the record does not show that in determining the sentence, the district court
relied on a finding that Gollihugh committed the Colorado harassment and
menacing offenses or on the conduct underlying them. Thus, there was no
error related to those charges. Second, the court considered Gollihugh’s
conduct during the shootout—specifically, that he brandished a gun and
attempted to fire it—both as part of the nature and circumstances of the
instant offense and as part of Gollihugh’s history and characteristics. In light
of the circumstances and the fact that Gollihugh presented no rebuttal evi-
dence, the district court did not err in determining that Gollihugh’s proffered
self-defense argument did not prevent the district court from considering this
conduct. See Harris, 702 F.3d at 230.
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No. 21-11132
Third, contrary to Gollihugh’s contentions, the district court appro-
priately credited the PSR’s factual recitation, which was derived from police
reports, related to his drug possession charge. See Fields, 932 F.3d at 320.
Thus, the court did not plainly err in relying on that information. See Puckett,
556 U.S. at 135. Fourth, and finally, Gollihugh fails to show that the district
court committed a clear or obvious error in finding that the facts described in
the PSR demonstrated, by a preponderance of the evidence, that Gollihugh
possessed a firearm as alleged in another pending charge. See id.; Johnson,
648 F.3d at 277; United States v. Huntsberry, 956 F.3d 270, 279 (5th Cir.
2020) (describing standard for constructive possession of firearm).
AFFIRMED.
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