United States v. Bernard ( 2023 )

Case: 22-30278 Document: 00516697030 Page: 1 Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-30278 FILED
Summary Calendar March 31, 2023
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Christopher A. Bernard,
Defendant—Appellant,
consolidated with
_____________
No. 22-30279
_____________
United States of America,
Plaintiff—Appellee,
versus
Christopher Antrell Bernard,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Louisiana
USDC Nos. 5:20-CR-139-1, 5:08-CR-303-1
______________________________
Case: 22-30278 Document: 00516697030 Page: 2 Date Filed: 03/31/2023
No. 22-30278
c/w No. 22-30279
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Christopher Antrell Bernard was sentenced within the guidelines
range to 262 months in prison after pleading guilty to possessing a firearm in
furtherance of drug trafficking. He appeals, challenging the denial of a
motion to suppress and raising a claim of sentencing error. Bernard also
appealed the judgment revoking his supervised release in a separate matter.
However, because he does not brief any challenge to the revocation or the
revocation sentence, he has abandoned those issues. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993).
In considering the denial of a motion to suppress, this court reviews
factual findings for clear error and conclusions of law de novo. United States
v. Reyes, 963 F.3d 482, 487 (5th Cir. 2020). Bernard argues that the
magistrate judge and the district court should not have credited the testimony
of two police officers that they detected a strong odor of marijuana near his
car. The question for this court is not whether it believes the officers or even
whether it finds their testimony plausible. See United States v. Casteneda, 951
F.2d 44, 48 (5th Cir. 1992). “Rather, the question is whether . . . the
witness[es] testified to something that physical laws tell us could not have
happened.” Id. Because Bernard does not show that the officers attested to
impossibilities, he fails to show clear error. See Reyes, 963 F.3d at 487.
Bernard’s remaining argument is that the district court explained his
sentence inadequately by not addressing his arguments for a downward
variance. As he acknowledges, our review is for plain error because he failed
to raise this issue at sentencing. See United States v. Whitelaw, 580 F.3d 256,
259 (5th Cir. 2009). To establish plain error, a defendant must show (1) an
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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error (2) that is clear or obvious and (3) that affected his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). The record reflects that
the district court saw no reason to vary from the guidelines range despite
Bernard’s arguments, which it acknowledged. The court also referred to its
consideration of the 18 U.S.C. § 3553(a) factors, including Bernard’s
personal characteristics and what the court described as his extensive
criminal history. It is not clear or obvious that this explanation was
insufficient, and Bernard accordingly fails to make the requisite showing. See
Puckett, 556 U.S. at 135.
For the foregoing reasons, the judgments of the district court are
AFFIRMED.
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