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United States v. Stevens ( 2021 )


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  • Case: 20-50478     Document: 00515824893         Page: 1     Date Filed: 04/16/2021
United States Court of Appeals
for the Fifth Circuit                               United States Court of Appeals
Fifth Circuit
FILED
April 16, 2021
No. 20-50478                           Lyle W. Cayce
Summary Calendar                              Clerk
United States of America,
Plaintiff—Appellee,
versus
James H. Stevens,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CR-337-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
James Stevens pleaded guilty to possessing child pornography,
including images of children under the age of 12.              18 U.S.C. §
2252A(a)(5)(B), (b)(2). Unlike many defendants convicted of possessing
child pornography, Stevens created some of the images he possessed. Those
*
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opinion should not be published and is not precedent except under the limited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: 20-50478        Document: 00515824893             Page: 2      Date Filed: 04/16/2021
No. 20-50478
images showed Stevens’s penis next to a sleeping four-year old. The child
had severe cognitive disabilities, including being nonverbal. The district
court sentenced Stevens to a prison term of 200 months, which is above the
advisory Guidelines range of 121 to 151 months.              Stevens argues that the
district court failed to adequately explain its upward variance,
A district court commits a procedural error where it fails to explain
adequately the chosen sentence. Gall v. United States,
    552 U.S. 38
    , 51 (2007).
Section 3553(c) requires the district court to state the reasons for a particular
sentence in open court at sentencing and the “specific reason” for a non-
guidelines sentence if one is imposed.
    18 U.S.C. § 3553
    (c); see United States
v. Key,
    599 F.3d 469
    , 474 (5th Cir. 2010). The explanation for the sentence
must be sufficient “to allow for meaningful appellate review and to promote
the perception of fair sentencing.” Gall,
    552 U.S. at 50
    .
Because Stevens’s request for a sentence within the guidelines range
was insufficient to alert the district court of any procedural errors at
sentencing, including the need for further explanation of the sentence, we
review for plain error. See United States v. Coto-Mendoza,
    986 F.3d 583
    , 585-
86 (5th Cir. 2021); 1 cf. United States v. Bostic,
    970 F.3d 607
     (5th Cir. 2020).
Under plain error review, we determine if there was a clear or obvious legal
error which affected the defendant’s substantial rights. See Puckett v. United
States,
    556 U.S. 129
    , 135 (2009). If Stevens makes this showing, we have the
discretion to remedy the error “only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Puckett,
    556 U.S. at 135
     (internal punctuation, quotation marks, and citation omitted).
1
Coto-Mendoza held that Holguin-Hernandez v. United States,
    140 S. Ct. 762
    (2020), does not override our precedent concerning what is required to preserve a claim of
procedural sentencing error. See 986 F.3d at 585-86.
2
Case: 20-50478      Document: 00515824893           Page: 3     Date Filed: 04/16/2021
No. 20-50478
There is no clear or obvious error. Puckett, 566 U.S. at 135. The
district court alerted Stevens to the issues the court was considering in setting
the sentence and invited Stevens to comment on each factor. See Coto-
Mendoza, 986 F.3d at 586 n.4. When the district court cited the § 3553(a)
factors that supported the sentence, those factors matched each area of
concern to which the district court had alerted Stevens, including the
seriousness of Stevens’s offense, the need to protect the community against,
and Stevens’s criminal history. See § 3553(a)(2)(A), (B), and (C). The
district court listened to Stevens’s arguments in favor of a lower sentence, as
well as the Government’s recitation of the offense conduct. See Coto-
Mendoza, 986 F.3d at 586 n.4. Moreover, the district court warned Stevens
that the court was considering an above-guidelines sentence and offered to
postpone sentencing, but Stevens declined. Stevens has failed to show a clear
or obvious error in the adequacy of the district court’s explanation of the
sentence. See Coto-Mendoza, 986 F.3d at 585; Puckett,
    556 U.S. at 135
    .
Further, he has not shown that a more detailed explanation would have
resulted in a lower sentence. See Puckett,
    556 U.S. at 135
    ; United States v.
Mondragon-Santiago,
    564 F.3d 357
    , 361 (5th Cir. 2009).
Although we affirm Stevens’s sentence, we note that the district court
orally pronounced a condition of supervised release with an exception to the
prohibition on internet access, but the written decision does not include the
exception. We therefore remand for the limited purpose of correcting the
clerical error in the written judgment. See Fed. R. Crim. P. 36; United
States v. Illies,
    805 F.3d 607
    , 610 (5th Cir. 2015); United States v. Johnson,
    588 F.2d 961
    , 964 (5th Cir. 1979).
AFFIRMED; REMANDED for the limited purpose of correcting
the clerical error in the written judgment.
3