United States v. Kendra Ward ( 2017 )


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  •      Case: 16-11063      Document: 00513962910         Page: 1    Date Filed: 04/21/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-11063                                  FILED
    Summary Calendar                            April 21, 2017
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    KENDRA WARD,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:16-CR-21-6
    Before JOLLY, SMITH, and GRAVES, Circuit Judges.
    PER CURIAM: *
    Kendra Ward was convicted pursuant to a guilty plea of conspiring to
    possess with the intent to distribute methamphetamine, in violation of 21
    U.S.C. §§ 846, 841(a)(1) & (b)(1)(B).           She appeals the 220-month, below-
    guidelines sentence, imposed in her case on the grounds that it is procedurally
    and substantively unreasonable.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11063     Document: 00513962910      Page: 2    Date Filed: 04/21/2017
    No. 16-11063
    First, Ward contends that the district court erred in denying her a
    reduction in her offense level pursuant to U.S.S.G. § 3E1.1 for acceptance of
    responsibility. She argues that she met almost all of the criteria for acceptance
    of responsibility and that her continued contact with her co-defendant and
    romantic partner should not have precluded a reduction. However, a district
    court may find that a defendant’s conduct is inconsistent with acceptance of
    responsibility if, as in this case, she fails to terminate or withdraw from her
    criminal conduct or associations or if she fails to abide by the conditions of her
    pre-trial release. See § 3E1.1, comment. (n.3); United States v. Hooten, 
    942 F.2d 878
    , 882-83 & n.11 (5th Cir. 1991). Ward has not shown error.
    Next, Ward argues that the district court improperly limited the degree
    of her downward departure under U.S.S.G. § 5K1.1 by departing from the
    sentencing guideline range that would have applied based on her uncharged
    offense conduct if the prosecutor’s charging decision had not resulted in a 240-
    month statutory maximum term of imprisonment for her offense. We have
    jurisdiction to consider Ward’s claim because a district court commits a
    violation of law if it fails to base the extent of a § 5K1.1 departure solely on
    assistance-related concerns. See United States v. Malone, 
    828 F.3d 331
    , 341
    (5th Cir.), cert. denied, 
    137 S. Ct. 526
    (2016); United States v. Desselle, 
    450 F.3d 179
    , 182 (5th Cir. 2006).
    We will review Ward’s claim for plain error only because she did not raise
    her argument in the district court. See Puckett v. United States, 
    556 U.S. 129
    ,
    135 (2009). To show plain error, Ward must show that an error occurred, that
    the error was clear or obvious, and that the error affected her substantial
    rights. 
    Id. If she
    makes that showing, we have the discretion to correct the
    error if it seriously affected the integrity, fairness, or public reputation of the
    proceedings. 
    Id. 2 Case:
    16-11063    Document: 00513962910     Page: 3   Date Filed: 04/21/2017
    No. 16-11063
    The district court’s statements at sentencing do not make clear whether
    it based the extent of Ward’s downward departure only on assistance-related
    factors or whether it also considered Ward’s offense conduct and the fact that
    her charges precluded her from being subject to a much higher sentence. Even
    if we assume that the district court erred by conflating its consideration of the
    extent of the § 5K1.1 departure with its consideration of relevant 18 U.S.C.
    § 3553(a) factors, we nevertheless conclude that Ward has not shown that any
    error affected her substantial rights. The record does not establish that, but
    for the alleged consideration of those factors, Ward would have received a
    shorter sentence. See United States v. Davis, 
    602 F.3d 643
    , 647 (5th Cir. 2010);
    cf. 
    Malone, 828 F.3d at 341
    (finding no plain error where the district court
    merely “muddled the steps” in formulating the sentence).
    Finally, Ward argues that her sentence is unreasonable because it was
    based in part on the district court’s improper consideration of her uncharged
    conduct and the effect of the prosecutor’s charging decision in determining her
    sentence. Because Ward did not raise her argument in the district court, we
    will review the claim for plain error only. See 
    Puckett, 556 U.S. at 135
    . Ward
    has not shown that the district court improperly considered her uncharged
    conduct and the effect of the prosecutor’s charging decision on her sentence.
    Those facts were relevant to the nature and circumstances of Ward’s offense
    as well as her history and characteristics. The district court had the discretion
    to consider the extent of Ward’s assistance and her full offense conduct,
    criminal history, and other § 3553(a) factors in determining her ultimate
    sentence. See § 3553(a).
    The judgment of the district court is AFFIRMED.
    3
    

Document Info

Docket Number: 16-11063 Summary Calendar

Judges: Jolly, Smith, Graves

Filed Date: 4/21/2017

Precedential Status: Non-Precedential

Modified Date: 11/6/2024