United States v. Coil , 280 F. App'x 358 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 3, 2008
No. 07-50459
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOHN KENNETH COIL
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-197-1
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
John Kenneth Coil appeals the concurrent sentences imposed on remand
of 33 months of imprisonment for transportation of obscene materials in
interstate commerce for sale or distribution and 60 months of imprisonment for
tax fraud. 18 U.S.C. §§ 1341, 1465.
“We review sentences inside and outside the advisory Guidelines range for
reasonableness under the abuse of discretion standard of review.” 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should not be published and is not precedent except under the limited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.
No. 07-50459
v. Lopez-Velasquez, __F.3d__, Nos. 07-10151, 07-10321, 2008 WL 1874577 at * 1
(5th Cir. Apr. 29, 2008) (citing Gall v. United States, 128 S. Ct. 586, 597 (2007)).
Under Gall, prior to reviewing a sentence under the abuse-of-discretion
standard, an appellate court must first determine whether the district court
committed any “significant procedural error.” Gall, 128 S. Ct. at 597. If the
sentencing decision is procedurally sound, the appellate court then considers
“the substantive reasonableness of the sentence” under an abuse-of-discretion
standard. Id. “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); see also Rita v. United States, 127 S. Ct. 2456, 2462 (2007).
Coil challenges the remedial portion of United States v. Booker, 543 U.S.
220 (2005), arguing that to the extent that the Supreme Court’s decision made
the Sentencing Guidelines advisory, Booker was wrongly decided and should be
overruled because it violates the Separation of Powers doctrine. Coil concedes
that this court cannot overrule Booker and acknowledges “that this Court
rejected a similar (though not identical) argument in United States v. Scroggins,
411 F.3d 572 (5th Cir. 2005),” and he raises the issue to preserve its further
review. As Coil concedes, absent an intervening decision to the contrary by the
Supreme Court, the Supreme Court’s opinion Booker opinion is binding. See
Hopwood v. Texas, 84 F.3d 720, 722 (5th Cir. 1996) (Politz, CJ., dissenting from
denial of rehearing en banc) (“The Supreme Court has left no doubt that as a
constitutionally inferior court, we are compelled to follow faithfully a directly
controlling Supreme Court precedent unless and until the Supreme Court itself
determines to overrule it.”).
Coil argues that the district court erred in calculating his criminal history
category as II because the court included two sentences of imprisonment of less
than one year and imposed more than ten years before the offenses of conviction
commenced, in violation of U.S.S.G. § 4A1.2(e)(2). Issues not raised in an appeal
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No. 07-50459
prior to this court’s last order of remand are deemed abandoned. Eason v.
Thaler, 73 F.3d 1322, 1329 (5th Cir. 1996). Coil’s challenge to the calculation of
his criminal history score was not raised in his appeal prior to this court’s last
order of remand and is deemed abandoned. See Eason, 73 F.3d at 1329.
Coil argues that the district court failed to make findings justifying the
enhancements to his base offense level on count 23. Because Coil did not raise
this argument in the district court, review of this procedural objection is for
plain error only. See Lopez-Velasquez, 2008 WL 1874577 at *1 (relying on
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007) (applying plain
error to unraised issue concerning the reasonableness of a sentence), petition for
cert. filed (Jan. 22, 2008) (No. 07-8978)). On plain error review, this court “may
correct the sentencing determination only if (1) there is error (and in light of
Booker, an ‘unreasonable’ sentence equates to a finding of error); (2) it is plain;
and (3) it affects substantial rights.” Peltier, 505 F.3d at 392 (citation omitted).
“Moreover, [FED. R. CRIM. P.] 52(b) leaves the decision to correct the forfeited
error within the sound discretion of the court of appeals, and the court should
not exercise that discretion unless the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks and citation omitted).
At resentencing, the district court considered Coil’s objections to the
Presentence Report’s (PSR) recommended enhancements for a leadership role
in the offense, for more than minimal planning, and for the use of sophisticated
means and overruled them. In overruling the objections, the court stated that
the enhancements were “traditional considerations that [had] always been
applied by sentencing courts with or without guidelines before, during, and
after.” The court added that it was “more than appropriate to apply them to any
process of arriving at a reasonable sentence in this case.” The record reflects
that the district court adopted the PSR. The district court may adopt the
recitation of facts found in the PSR, provided that there is a sufficient basis for
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No. 07-50459
these facts and the defendant adduces no rebuttal evidence. United States v.
Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). Coil has not met the burden of
demonstrating that the district court should not have relied upon the PSR. See
United States v. Betancourt, 422 F.3d 240, 248 (5th Cir. 2005). He has shown no
error, plain or otherwise.
Coil asserts that the district court did not refer to 18 U.S.C. § 3553(a) or
to any of the factors set forth in § 3553(a) in imposing sentence. This court
requires arguments to be briefed in order to be preserved. Yohey v. Collins, 985
F.2d 224, 225 (5th Cir. 1993); FED. R. APP. P. 28(a)(9). Coil’s broad statement of
error without argument or citation to relevant authority is inadequate for
purposes of appeal, and the issue is deemed abandoned. See Yohey, 985 F.2d at
225.
Finally, Coil argues that his 60-month statutory maximum sentence on
count 23 was unreasonable because the sentence deprived him of any benefit for
acceptance of responsibility. He notes that his guidelines range was 63 to 78
months of imprisonment or more than the 60-month statutory maximum, and
he refers to U.S.S.G. § 5G1.1(a), which provides that “where the statutorily
authorized maximum sentence is less than the minimum of the applicable
guideline range, the statutorily authorized maximum sentence shall be the
guideline sentence.” Coil relies on United States v. Rodriguez, 64 F.3d 638 (11th
Cir. 1995), a pre-Booker decision, arguing that the district court had the
discretion to downwardly depart.
To the extent that Coil argues that the district court should have
downwardly departed based on his acceptance of responsibility, a court of
appeals is generally without jurisdiction to review a sentencing court’s refusal
to grant a downward departure when its decision is based upon a determination
that a departure was not warranted on the facts of the case before it. United
States v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). The court retains
jurisdiction to review “whether the district court’s imposition of a guideline
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No. 07-50459
sentence instead of a non-guideline sentence was reasonable.” United States v.
Nikonova, 480 F.3d 371, 375 (5th Cir.), cert. denied, 128 S. Ct. 163 (2007).
Because Coil did not argue in the district court that the 60-month sentence
deprived him of credit for acceptance of responsibility and rendered his sentence
unreasonable, review is for plain error only. See Lopez-Velasquez, 2008 WL
1874577 at *1; Peltier, 505 F.3d at 392.
Coil’s sentence, within a properly calculated guidelines range, is
presumptively reasonable. See Alonzo, 435 F.3d at 554. Because Coil’s 60-
month sentence was within the advisory guidelines range, this court “will give
great deference to that sentence” and “will infer that the judge has considered
all the factors for a fair sentence set forth in the Guidelines.” United States v.
Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Coil has not shown error, plain or
otherwise with respect to his argument that his 60-month sentence was
unreasonable because it failed to accord him credit for acceptance of
responsibility. See Gall 128 S. Ct. at 596; see also Lopez-Velasquez, 2008 WL
1874577 at *1; Peltier, 505 F.3d at 392.
AFFIRMED.
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