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United States v. Drake ( 2023 )


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  • Case: 22-50345        Document: 00516661720             Page: 1      Date Filed: 03/01/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50345
consolidated with                                   FILED
No. 22-50352                                March 1, 2023
Summary Calendar                             Lyle W. Cayce
____________                                      Clerk
United States of America,
Plaintiff—Appellee,
versus
Shawn Kaleb Drake,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 7:15-CR-81-1, 7:21-CR-364-1
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
In this consolidated appeal, Shawn Kaleb Drake appeals both the
sentence imposed following revocation of a previously imposed term of
supervised release (No. 22-50345) and the sentence imposed following his
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50345      Document: 00516661720           Page: 2    Date Filed: 03/01/2023
No. 22-50345
c/w No. 22-50352
guilty-plea   conviction    for     possession   with   intent   to   distribute
methamphetamine (No. 22-50352).
First, Drake argues that the district court failed to explain its decision
to impose a consecutive revocation sentence. Because Drake failed to
preserve this issue in the district court, we review for plain error. See United
States v. Warren,
    720 F.3d 321
    , 327 (5th Cir. 2013); Puckett v. United States,
    556 U.S. 129
    , 135 (2009). Under plain error review, we first determine if
there was a clear or obvious legal error which affected Drake’s substantial
rights. Puckett,
    556 U.S. at 135
    . If Drake makes this showing, we have
discretion to remedy the error but should do so “only if the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.”
    Id.
     (internal punctuation, quotation marks, and citation omitted).
A sentencing court must provide reasons for imposing a particular
sentence in enough detail “to satisfy the appellate court that [it] has
considered the parties’ arguments and has a reasoned basis for exercising its
own legal decisionmaking authority.” Rita v. United States,
    551 U.S. 338
    , 356
(2007). Before imposing the revocation sentence in this case, the district
court stated only that it had reviewed the policy statements in the Sentencing
Guidelines and the
    18 U.S.C. § 3553
    (a) sentencing factors. However, the
revocation immediately followed Drake’s sentencing for the new
methamphetamine offense, and the district court stated during the
revocation proceeding that it would consider everything that had already
been discussed. When sentencing Drake for the methamphetamine offense,
the district court engaged in a more detailed consideration of the various
§ 3553(a) factors. In addition, the new methamphetamine sentence was
ordered to run concurrently with certain pending state charges and
consecutively to others, demonstrating that the district court was aware that
it could impose a consecutive or concurrent sentence. Thus, the district
court considered the parties’ arguments and had a reasoned basis for its
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Case: 22-50345      Document: 00516661720          Page: 3     Date Filed: 03/01/2023
No. 22-50345
c/w No. 22-50352
decision. See Rita,
    551 U.S. at 356
    . Even if the district court erred, we
conclude that Drake has not shown that his substantial rights were affected
because he has not shown a reasonable probability “that an explanation
would have changed his sentence.” United States v. Mondragon-Santiago,
    564 F.3d 357
    , 365 (5th Cir. 2009).
Second, Drake asserts that the district court ordered that two specific
paragraphs should be stricken from the presentence report (PSR) for the
methamphetamine offense, but this was never done. Subsequent to the filing
of Drake’s brief, an amended PSR was prepared without these paragraphs,
the record was supplemented with the amended PSR, and, according to the
Government, the amended PSR was provided to the Bureau of Prisons.
Because Drake has received the relief sought, we conclude that this issue is
dismissed as moot. See, e.g., Church of Scientology of Cal. v. United States,
    506 U.S. 9
    , 12 (1992).
Third, Drake argues that, for both sentences, the district court erred
by failing to reduce or adjust the sentence to account for time he spent in
presentence detention. Again, we conclude that Drake failed to preserve this
issue, see Warren,
    720 F.3d at 327
    , so plain error review applies, Puckett,
    556 U.S. at 135
    . Drake argues that the district court believed he should receive
some form of credit for this time, but it mistakenly believed that the Bureau
of Prisons could award a credit and that it lacked authority to account for this
time in another way. We conclude that Drake has not shown any clear or
obvious error with respect to his sentences or that any error affected his
substantial rights. See United States v. Aparicio,
    963 F.3d 470
    , 477 (5th Cir.
2020). Therefore, we affirm the imposition of his sentences.
AFFIRMED IN PART; DISMISSED IN PART.
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