United States v. Jenkins ( 2023 )

Case: 22-11066 Document: 00516842406 Page: 1 Date Filed: 08/01/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-11066
Summary Calendar FILED
____________ August 1, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Walter Leonard Jenkins,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-155-1
______________________________
Before King, Haynes, and Higginson, Circuit Judges.
Per Curiam: *
Walter Leonard Jenkins appeals his 60-month sentence for possessing
a firearm as a convicted felon. Although the advisory guidelines range was
30 to 37 months of imprisonment, the district court applied an upward
departure pursuant to U.S.S.G. § 4A1.3. Jenkins challenges the procedural
reasonableness of his sentence.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-11066 Document: 00516842406 Page: 2 Date Filed: 08/01/2023
No. 22-11066
First, Jenkins argues that the court’s statement that he continued to
engage in criminal activity while on supervision is clearly erroneous as a
factual matter. Jenkins did not object to the procedural reasonableness of his
sentence in the district court. Thus, we review the procedural
reasonableness of the sentence for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 362-64 (5th Cir. 2009). While the
presentence report stated that Jenkins's parole records did not reveal any
filed violations, it detailed that he was twice arrested and convicted in 2014
while on parole for his 2012 burglary. Then, in 2017 and 2018, he was again
arrested and convicted twice while serving parole for his 2015 assault. The
court thus did not err in finding that Jenkins engaged in criminal activity
while on supervision. See United States v. Lavalais, 960 F.3d 180, 189 (5th
Cir. 2020).
Second, Jenkins asserts that the district court factually erred in finding
that his criminal conduct has continued to escalate to involve violence and
firearms. But as a juvenile in 2001, Jenkins committed a burglary. When he
turned 18, he committed two assaults. He then committed another burglary
in 2012 and another assault in 2015. Finally, three years after his release from
prison, Jenkins beat his teenage son and possessed a firearm, leading to his
instant conviction. Jenkins’s prior sentences were not considered as relevant
conduct, and he did not receive any adjustments to his base offense level
because of them. Thus, the district court was free to consider his firearm
possession in deciding whether to depart, and Jenkins possessing a firearm
with his criminal history demonstrated a “lack of deterrence and continued
criminal activity,” which are proper grounds for departing under § 4Al.3.
Lavalais, 960 F.3d at 189.
Finally, Jenkins argues that the statute of conviction, 18 U.S.C.
§ 922(g) is unconstitutional under the Commerce Clause. As he concedes,
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Case: 22-11066 Document: 00516842406 Page: 3 Date Filed: 08/01/2023
No. 22-11066
his argument is foreclosed. See United States v. Alcantar, 733 F.3d 143, 145
(5th Cir. 2013).
Accordingly, the judgment of the district court is AFFIRMED.
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