United States v. Anthony Gunnell ( 2020 )

Case: 19-11030 Document: 00515678881 Page: 1 Date Filed: 12/18/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
December 18, 2020
No. 19-11030 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Anthony Gunnell,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-104-1
Before Owen, Chief Judge, and Haynes and Costa, Circuit Judges.
Per Curiam:*
Anthony Gunnell pleaded guilty, without the benefit of a plea
agreement, to possession of a controlled substance (dihydrocodeinone) with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(E). The
district court sentenced Gunnell to 16 months in prison, which was above the
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-11030 Document: 00515678881 Page: 2 Date Filed: 12/18/2020
No. 19-11030
advisory guidelines range of zero to six months’ imprisonment. On appeal,
Gunnell asserts that his term of imprisonment is procedurally and
substantively unreasonable and that his sentence violates Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), and Blakely v. Washington, 542 U.S. 296,
301 (2004).
Generally, sentences, whether inside or outside the advisory
guidelines range, are reviewed for reasonableness in light of the 18 U.S.C.
§ 3553(a) factors. Gall v. United States, 552 U.S. 38, 51 (2007). Gunnell
asserts that his sentence is procedurally unreasonable because the district
court considered his criminal history that was uncounted under the
Guidelines, including a bare arrest record, as grounds for a variance under
§ 3553(a). Gunnell, however, did not specifically raise the issues he argues
on appeal in the district court. Accordingly, review is for plain error. Puckett
v. United States, 556 U.S. 129, 135 (2009). Under plain error review, this
court determines if there was a clear or obvious legal error which affected the
defendant’s substantial rights. See id. If the defendant makes this showing,
this court has the 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).
The district court’s consideration of Gunnell’s unscored criminal
history was not erroneous. It is well settled that a district court may consider
a defendant’s criminal history in imposing a non-guidelines sentence. United
States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006). It may consider juvenile
conduct, see id., and, if there is sufficient evidence to corroborate its
reliability, any unadjudicated criminal conduct, see United States v. Johnson,
648 F.3d 273, 277 (5th Cir. 2011). Additionally, contrary to Gunnell’s
contention, the district court did not consider a bare arrest record. See United
States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012); see also United States v.
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No. 19-11030
Windless, 719 F.3d 415, 420 (5th Cir. 2013). There was no error, plain or
otherwise.
Gunnell also asserts that the district court procedurally erred by failing
to explain adequately its reasons for the imposed above-guidelines sentence
and that the district court substantively erred by imposing an “excessive and
unreasonable sentence.” Because Gunnell’s counseled brief, which is not
entitled to liberal construction, fails to brief these issues adequately on
appeal, Gunnell has waived review of these claims. See United States v.
Scroggins, 599 F.3d 433, 446 (5th Cir. 2010); Beasley v. McCotter, 798 F.2d
116, 118 (5th Cir. 1986); Fed. R. App. P. 28(a)(8)(A).
Gunnell next contends that the district court’s consideration of facts
set out in the Presentence Report concerning his criminal history violated the
Sixth Amendment. According to Gunnell, judicial fact-finding relating to
uncounted and unadjudicated criminal conduct caused him to be sentenced
above the applicable sentencing guidelines range. District courts are
permitted to find all facts relevant to sentencing by a preponderance of
evidence without violating the Sixth Amendment. United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005); United States v. Whitfield, 590 F.3d 325,
367 (5th Cir. 2009). Moreover, because Gunnell’s prison sentence of 16
months is below the applicable statutory maximum sentence of 10 years, or
120 months, of imprisonment, there is no Apprendi violation.
Accordingly, the district court’s judgment is AFFIRMED.
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