United States v. Thomas ( 2023 )

Case: 22-30637 Document: 00516984754 Page: 1 Date Filed: 11/30/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-30637
Summary Calendar FILED
____________ November 30, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Tryton Alonzo Thomas,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:21-CR-275-1
______________________________
Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
Per Curiam: *
Tryton Alonzo Thomas pleaded guilty to conspiracy to possess with
intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)
(prohibiting unlawful acts with controlled substance), (b)(1)(A)(viii)
(outlining sentencing for “50 grams or more of methamphetamine”), 846
(prohibiting conspiracy). He was sentenced, inter alia, to 262 months’
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-30637 Document: 00516984754 Page: 2 Date Filed: 11/30/2023
No. 22-30637
imprisonment, based in part on a career-offender enhancement under
Guideline § 4B1.1.
Thomas contends his instant offense is not a qualifying controlled-
substance offense. See Guideline § 4B1.2 cmt. n.1 (amended 2023) (defining
terms). He maintains: the Guideline language does not include inchoate
offenses; and, although the commentary does include such offenses, the
commentary is inconsistent with the text of the Guideline.
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).
As reflected above, Guidelines interpretation and application are
reviewed de novo. E.g., United States v. Sam, 467 F.3d 857, 861 (5th Cir.
2006). Following completion of briefing in this case, our court, en banc,
rejected a contention identical to Thomas’. United States v. Vargas, 74 F.4th
673, 690, 697–98 (5th Cir. 2023) (en banc) (“[W]e reaffirm our longstanding
precedent that inchoate offenses like conspiracy are included in the definition
of ‘controlled substance offense’”.).
AFFIRMED.
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