United States v. Collins ( 2023 )


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  • Case: 23-30165         Document: 00516952880             Page: 1      Date Filed: 11/01/2023
    United States Court of Appeals
    for the Fifth Circuit
    ____________                              United States Court of Appeals
    Fifth Circuit
    FILED
    No. 23-30165                             November 1, 2023
    Summary Calendar
    ____________                                 Lyle W. Cayce
    Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Darrick Collins,
    Defendant—Appellant.
    ______________________________
    Appeal from the United States District Court
    for the Middle District of Louisiana
    USDC No. 3:22-CR-48-1
    ______________________________
    Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
    Per Curiam: *
    Darrick        Collins    contests     an     above-Guidelines       74-months’
    imprisonment, imposed subsequent to his guilty plea to possession of a
    firearm by a convicted felon, in violation of 
    18 U.S.C. § 922
    (g)(1). He claims
    procedural error and a substantively unreasonable sentence.
    _____________________
    *
    This opinion is not designated for publication. See 5th Cir. R. 47.5.
    Case: 23-30165      Document: 00516952880           Page: 2     Date Filed: 11/01/2023
    No. 23-30165
    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, 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).
    The claimed procedural error is that the court improperly relied on an
    unsupported factual assumption: he possessed a firearm while outside his ex-
    girlfriend’s house. Assuming Collins preserved this contention, it fails
    because he does not succeed under the above-described clear-error standard
    of review. “There is no clear error if the district court’s finding is plausible
    in light of the record as a whole.” United States v. Alfaro, 
    30 F.4th 514
    , 518
    (5th Cir. 2022) (citation omitted). Stated differently, to qualify as clearly
    erroneous, the district court’s finding “must strike us as more than just
    maybe or probably wrong; it must . . . strike us as wrong with the force of a
    five-week-old, unrefrigerated dead fish”. United States v. Hernandez, 
    48 F.4th 367
    , 373 (5th Cir. 2022) (alteration in original) (citation omitted).
    The court did not clearly err in finding Collins had the firearm with
    him outside his ex-girlfriend’s house. First, it is plausible Collins had the
    firearm and fired it at his ex-girlfriend’s house, based on his prison telephone
    call. Second, the presentence investigation report noted Collins knocked and
    banged on the doors and windows of his ex-girlfriend’s house, threatening to
    kill her. It is plausible he had the means to do so. Third, officers observed
    Collins exit his vehicle carrying a firearm at his apartment complex after
    leaving that house.
    2
    Case: 23-30165      Document: 00516952880           Page: 3    Date Filed: 11/01/2023
    No. 23-30165
    Collins’ substantive-reasonableness challenge is, as described above,
    reviewed for abuse of discretion. He contends: the court relied on the
    unsupported assumption he possessed the firearm when he went to his ex-
    girlfriend’s house; its reasons for the upward variance were already
    accounted for in the Guidelines; and it improperly weighed the sentencing
    factors.
    When reviewing substantive reasonableness, our court considers “the
    totality of the circumstances, including the extent of any variance from the
    Guidelines range”. United States v. Churchwell, 
    807 F.3d 107
    , 123 (5th Cir.
    2015). We, however, “must give due deference to the district court’s
    decision that the [18 U.S.C. §] 3553(a) [sentencing] factors, as a whole, justify
    the extent of the variance”. Id. 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).
    Collins’ assertion the court erred in finding he possessed the firearm
    when he was at his girlfriend’s house fails, as discussed supra. Re-stated, the
    court properly took that factor into account under 
    18 U.S.C. § 3553
    (a)(1)
    (requiring sentencing courts to consider “the nature and circumstances of
    the offense and the history and characteristics of the defendant”).
    Collins’ assertion the court incorrectly relied on factors already
    accounted for in the sentencing range is meritless. United States v. Williams,
    
    517 F.3d 801
    , 809 (5th Cir. 2008) (“The Supreme Court’s decision 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)).
    3
    Case: 23-30165       Document: 00516952880         Page: 4   Date Filed: 11/01/2023
    No. 23-30165
    Finally, concerning the claim the court improperly weighed the 
    18 U.S.C. § 3553
    (a) sentencing factors, and as the court noted, Collins’ criminal
    history includes convictions for disturbing the peace by fistic encounter,
    carrying a concealed weapon as a convicted felon, and attempted second
    degree murder. In this case, Collins threatened to kill his ex-girlfriend and
    then, following his arrest, he attempted to, or did, call her approximately 85
    times.
    These are all permissible factors for consideration under 
    18 U.S.C. § 3553
    (a). He essentially asks our court to “reweigh the [Guidelines]
    sentencing factors and substitute our judgment for that of the district court,
    which we will not do”. United States v. Hernandez, 
    876 F.3d 161
    , 167 (5th
    Cir. 2017).
    AFFIRMED.
    4
    

Document Info

Docket Number: 23-30165

Filed Date: 11/1/2023

Precedential Status: Non-Precedential

Modified Date: 11/2/2023