United States v. Christopher Douglas ( 2020 )

Case: 20-30083 Document: 00515574496 Page: 1 Date Filed: 09/22/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 22, 2020
No. 20-30083 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Christopher Douglas,
Defendant—Appellant,
consolidated with
_____________
No. 20-30089
_____________
United States of America,
Plaintiff—Appellee,
versus
Christopher L. Douglas,
Defendant—Appellant.
Case: 20-30083 Document: 00515574496 Page: 2 Date Filed: 09/22/2020
No. 20-30083
c/w No. 20-30089
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 5:17-CR-70-1
USDC No. 5:16-CR-157-1
Before Owen, Chief Judge, and Dennis and Ho, Circuit Judges.
Per Curiam:*
After Christopher Douglas pleaded guilty to distributing five or more
grams of methamphetamine and conspiracy to commit kidnapping, we
vacated his original sentence and remanded. He now appeals the concurrent
387-month sentences the district court imposed on resentencing.
Douglas first argues that the district court imposed a sentence 60
months greater than the advisory guidelines range out of actual
vindictiveness. We review this claim de novo. United States v. Campbell, 106
F.3d 64 (5th Cir. 1997). As the new aggregated 387-month sentence of
imprisonment is less severe than the aggregated 420-month sentence
Douglas originally received, no presumption of vindictiveness arises. Id. at
69. Nothing suggests that Douglas’s sentence is the product of actual
vindictiveness.
Next, Douglas argues that the district court made several factfinding
errors that affected its sentencing decision. He argues that the district court
erred when it found that the kidnapping victim sustained serious bodily
injury, that a dangerous weapon was used, and that the victim had been run
over with a car. He posits further that the district court may have incorrectly
found and considered that he was involved in a man’s death—conduct for
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-30083
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which he was arrested and later cleared by the police—when it selected his
sentence. We address this latter argument first, reviewing the district court’s
factfinding for clear error. United States v. Zuniga, 720 F.3d 587, 590 (5th
Cir. 2013).
A district court may not consider arrests, standing alone, at sentencing
for upward departure or variance purposes. United States v. Johnson, 648
F.3d 273, 277-78 (5th Cir. 2011). In addressing Douglas’s objection to the
PSR concerning the arrest, the district court found that Douglas was arrested
for the offense but was not prosecuted for it and that he denied being
involved, none of which Douglas challenged then or on appeal. When
providing reasons for upwardly departing pursuant to U.S.S.G. § 4A1.3, the
district court did not mention the arrest. Rather, it explained that he had 20
criminal history points based on convictions including violent crimes that had
been recently escalating. Because we find no clear error in the district court’s
factfinding underpinning its sentence as an upward departure, we decline to
consider his other factual challenges, as they challenge the rationale of the
district court’s alternative imposition of the 387-month sentence as a
variance under 18 U.S.C. § 3553(a).
Douglas next argues that his sentence is substantively unreasonable
because the district court failed to consider his mitigating evidence and gave
too much weight to his criminal history. Reasonableness review, in the
context of a guidelines departure, requires us to evaluate both the decision to
upwardly depart and the extent of the departure for an abuse of discretion.
United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006).
The district court stated at sentencing that it had received and read
the sentencing materials submitted by Douglas, including medical records
and numerous letters submitted by Douglas and others on his behalf, listing
their names to make sure it had read them all. Moreover, the district court
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Case: 20-30083 Document: 00515574496 Page: 4 Date Filed: 09/22/2020
No. 20-30083
c/w No. 20-30089
assessed the facts and provided specific reasons consistent with the § 3553(a)
factors to support its determination that a sentence outside of the guidelines
range was necessary to achieve the goals of sentencing. See United States v.
Warren, 720 F.3d 321, 332 (5th Cir. 2013). Neither the decision to depart nor
the extent of the departure amounted to an abuse of discretion. See United
States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008); Zuniga-Peralta, 442
F.3d at 346-48.
Last, Douglas argues that his sentence is unconstitutional because it
amounts to cruel and unusual punishment. We generally review Eighth
Amendment challenges de novo, but since Douglas is raising his challenge for
the first time on appeal, we review for plain error. United States v. Smith, 895
F.3d 410, 418 (5th Cir. 2018).
When reviewing an Eighth Amendment challenge, we “first make[] a
threshold comparison of the gravity of the offense against the severity of the
sentence.” Smith, 895 F.3d at 419 (internal quotation marks and citation
omitted). “Only if the sentence seems grossly disproportionate to the
offense do we reach the second step of the analysis and compare the sentence
to (1) sentences for similar crimes in the same jurisdiction and (2) sentences
for the same crime in other jurisdictions.” United States v. Neba, 901 F.3d
260, 264 (5th Cir. 2018) (internal quotation marks and citation omitted).
Douglas’s argument fails at the threshold step. See id. at 264-65.
The judgment of the district court on resentencing is AFFIRMED.
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