United States v. Drayon Conley , 644 F. App'x 294 ( 2016 )

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     Case: 15-10550      Document: 00513435743         Page: 1    Date Filed: 03/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-10550
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 23, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
DRAYON CONLEY,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-4-1
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Drayon Conley appeals the 96-month, above-guidelines prison sentence
imposed following his guilty plea conviction for being a felon in possession of a
firearm.

18 U.S.C. § 922

(g)(1);

18 U.S.C. § 924

(a)(2). We affirm.
Reviewing for plain error, we reject Conley’s argument that his base
offense level was assigned erroneously because the district court ignored
Descamps v. United States,

133 S. Ct. 2276

 (2013), and impermissibly
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10550     Document: 00513435743      Page: 2   Date Filed: 03/23/2016
No. 15-10550
considered state court documents and the definition of deliver set forth in
Texas Health & Safety Code Annotated § 481.002(8) to find that his prior
conviction under Texas Health & Safety Code Annotated § 481.112(a)
constituted a controlled substance offense under U.S.S.G. § 2K2.1(a)(4)(A). See
Puckett v. United States,

556 U.S. 129

, 135 (2009). Conley’s arguments, if not
foreclosed, are unsettled and at least subject to reasonable dispute. See United
States v. Teran-Salas,

767 F.3d 453

, 459 (5th Cir. 2014), cert. denied,

135 S. Ct. 1892

 (2015). A claim subject to reasonable dispute cannot succeed on plain
error review. Puckett,

556 U.S. at 135

; United States v. Phea,

755 F.3d 255

,
263 (5th Cir.), cert. denied,

135 S. Ct. 416

 (2014).
Next, reviewing for abuse of discretion, we reject Conley’s argument that
his 96-month prison sentence is substantively unreasonable.                It was
permissible for the district court to consider that Conley had previously
received lenient sentences in making its sentencing determination. See United
States v. Lee,

358 F.3d 315

, 328-29 (5th Cir. 2004).         The district court’s
imposition of an above-guidelines sentence based on Conley’s lengthy criminal
history and the lenient sentences he previously received was not unreasonable.
See id.; United States v. Brantley,

537 F.3d 347

, 350 (5th Cir. 2008).
Furthermore, the amount of the variance, 25 months above the top of the
guidelines range, was not unreasonable. See United States v. McElwee,

646 F.3d 328

, 345 (5th Cir. 2011) (collecting cases). Conley has not shown that the
district court abused its discretion in selecting a 96-month sentence. See Gall
v. United States,

552 U.S. 38