United States v. Jamie Brewer ( 2012 )


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  •      Case: 11-60603     Document: 00511871449         Page: 1     Date Filed: 05/30/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    May 30, 2012
    No. 11-60603
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    JAMIE BREWER,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Mississippi
    USDC No. 1:10-CR-146-1
    Before DAVIS, DeMOSS, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Jamie Brewer pleaded guilty to counts three, five, six, and nine of a nine-
    count indictment charging him with depriving persons of their civil rights while
    acting under color of law. Brewer was sentenced at the top of the guidelines
    imprisonment range to consecutive terms of imprisonment of 12 months for
    count three, 12 months for count five, 11 months for count six, and 11 months
    for count nine, for a total term of imprisonment of 46 months. He has appealed
    his sentence.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60603    Document: 00511871449      Page: 2   Date Filed: 05/30/2012
    No. 11-60603
    Following United States v. Booker, 
    543 U.S. 220
     (2005), we review
    sentences for reasonableness in light of the sentencing factors in 
    18 U.S.C. § 3553
    (a). United States v. Mondragon-Santiago, 
    564 F.3d 357
    , 360 (5th Cir.
    2009). Pursuant to Gall v. United States, 
    552 U.S. 38
    , 49-51 (2007), we consider
    initially whether the district court committed a “significant procedural error,”
    such as miscalculating the advisory guidelines range. United States v. Delgado-
    Martinez, 
    564 F.3d 750
    , 752-73 (5th Cir. 2009). If no such error is found or if the
    error is harmless, we then review the substantive reasonableness of the sentence
    imposed under an abuse of discretion standard. 
    Id. at 753
    .
    Brewer contends that the district court committed a procedural error by
    failing to group the counts under U.S.S.G. § 3D1.2(c). Although Brewer asserted
    in the district court that the counts should be grouped, he did so on other
    grounds. For that reason, our review of this issue has been for plain error. See
    Puckett v. United States, 
    556 U.S. 129
    , 135 (2009).
    Although all four of Brewer’s counts of conviction share the specific offense
    characteristic that they were committed while Brewer was acting under color of
    law, as Brewer contends, the fact that Brewer acted under color of law with
    respect to one count was not treated as a specific offense characteristic of any of
    the other counts. See United States v. Davidson, 
    283 F.3d 681
    , 685 (5th Cir.
    2002). The specific offense characteristic was not double counted and was not
    a characteristic that linked the offenses together. See 
    id.
     Rather, it operated as
    an independent and unrelated enhancement with respect to each of Brewer’s
    separate crimes. See id.; see also § 3D1.2, comment. (n.5). No error has been
    shown, plain or otherwise.
    Brewer contends that the sentence was substantively unreasonable. In
    this circuit, within-guidelines sentences are presumptively reasonable. See
    United States v. Cooks, 
    589 F.3d 173
    , 186 (5th Cir. 2009).
    Brewer lists numerous factors that he contends would have supported a
    downward variance from the guidelines range: financial hardship, Army
    2
    Case: 11-60603   Document: 00511871449     Page: 3   Date Filed: 05/30/2012
    No. 11-60603
    commendations, war-related injuries and disabilities including post-traumatic
    stress disorder, and stable work history. He argues that his criminal conduct
    was “completely out of character.”
    These contentions were considered by the district court and were rejected.
    Brewer has not rebutted the presumption of reasonableness. See id.; see also
    United States v. Campos-Maldonado, 
    531 F.3d 337
    , 339 (5th Cir. 2008)
    (appellate review of sentencing decisions is highly deferential). The judgment
    is
    AFFIRMED.
    3
    

Document Info

Docket Number: 11-60603

Judges: Davis, DeMOSS, Haynes, Per Curiam

Filed Date: 5/30/2012

Precedential Status: Non-Precedential

Modified Date: 11/5/2024