United States v. Moody ( 2023 )

Case: 23-10235 Document: 00516898914 Page: 1 Date Filed: 09/18/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10235
Summary Calendar FILED
____________ September 18, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Joshua Trace Moody,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:22-CR-63-1
______________________________
Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
Per Curiam: *
Joshua Trace Moody contests the above-Guidelines 48-months’
imprisonment sentence imposed subsequent to his guilty plea to escaping
from a halfway house, in violation of 18 U.S.C. § 751(a) (prohibiting escape
from institution or facility). He maintains the court imposed a substantively-
unreasonable sentence.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10235 Document: 00516898914 Page: 2 Date Filed: 09/18/2023
No. 23-10235
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 (Moody does not claim
such error), 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, 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).
A sentence is substantively unreasonable “if it (1) does not account
for a factor that should have received significant weight, (2) gives significant
weight to an irrelevant or improper factor, or (3) represents a clear error of
judgment in balancing the sentencing factors”. United States v. Cano, 981
F.3d 422, 427 (5th Cir. 2020) (citation omitted).
Moody fails to demonstrate any abuse of discretion. Id. (discussing
abuse-of-discretion standard). The court considered Moody’s mitigation
contentions and the advisory Guidelines sentencing range and relied on
several of the 18 U.S.C. § 3553(a) sentencing factors to impose the 48-month
sentence. In doing so, the court concluded: the sentencing range did not
reflect the nature of his violent conduct or the seriousness of his criminal
history; and an above-Guidelines sentence was warranted to reflect the
seriousness of the offense, afford adequate deterrence, and provide public
protection. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A)–(C).
Moody’s assertion that the court incorrectly relied on factors already
accounted for in the sentencing range is meritless. See United States v.
Williams, 517 F.3d 801, 809 (5th Cir. 2008) (“The Supreme Court’s decision
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Case: 23-10235 Document: 00516898914 Page: 3 Date Filed: 09/18/2023
No. 23-10235
in Booker implicitly rejected the position that no additional weight could be
given to factors included in calculating the applicable advisory Guidelines
range, since to do otherwise would essentially render the Guidelines
mandatory.” (footnote omitted)). He essentially asks our court to reweigh
the 18 U.S.C. § 3553(a) sentencing factors and substitute our judgment on
appeal, which our court will not do. See Gall, 552 U. S. at 51; United States v.
Heard, 709 F.3d 413, 435 (5th Cir. 2013) (declining to reweigh the § 3553(a)
sentencing factors on substantive-reasonableness review).
Similarly, his assertion a 24-month upward variance was excessive as
a matter of law is unavailing because our court has upheld more significant
variances. E.g., United States v. Key, 599 F.3d 469, 475–76 (5th Cir. 2010)
(upholding 216-month sentence where maximum Guidelines sentencing
range was 57 months); United States v. Brantley, 537 F.3d 347, 348–50
(upholding variance to concurrent terms of 120 months and 180 months from
Guidelines sentencing range of 41 to 51 months); United States v. Jones, 444
F.3d 430, 433, 441–42 (5th Cir. 2006) (affirming upward variance of 120
months from Guidelines sentencing range of 46 to 57 months).
AFFIRMED.
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