United States v. Stewart ( 2023 )

Case: 23-30101 Document: 00516881447 Page: 1 Date Filed: 09/01/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-30101 FILED
Summary Calendar September 1, 2023
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Alfred Stewart, III,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:22-CR-65-2
______________________________
Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
Per Curiam: *
Alfred Stewart, III, challenges the sentence imposed following his
convictions for: conspiracy to distribute and possess with intent to distribute
cocaine, in violation of 21 U.S.C. § 846; possession with intent to distribute
cocaine, cocaine base, and methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C); felon in possession of firearm and ammunition, in
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-30101
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2); and possession of a firearm in
furtherance of a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A). He contends his within-Guidelines 97-months’ sentence,
imposed after denial of his downward-variance motion, is substantively
unreasonable.
Although post-Booker, the Sentencing Guidelines are advisory only,
the district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 46, 51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, as in this instance, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Stewart fails to show his sentence does not account for a factor that
should receive significant weight, gives significant weight to an irrelevant or
improper factor, or represents a clear error of judgment in balancing
sentencing factors. E.g., United States v. Jenkins, 712 F.3d 209, 214 (5th Cir.
2013) (outlining abuse of discretion for within-Guidelines sentence). The
record reflects the district court considered Stewart’s contentions in support
of a below-Guidelines sentence but rejected them. Ultimately, Stewart
disagrees with the sentence imposed by the district court and fails to
overcome the presumption that the court imposed a reasonable sentence. See
United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). He has not shown
his sentence is substantively unreasonable.
To the extent Stewart might present a Second Amendment challenge
to 18 U.S.C. § 922(g)(1) (felon in possession), he has abandoned it by failing
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No. 23-30101
to adequately brief it. E.g., United States v. Scroggins, 599 F.3d 433, 446–47
(5th Cir. 2010) (“It is not enough to merely mention or allude to a legal
theory.” (citation omitted)).
AFFIRMED.
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