United States v. Suber ( 2023 )

Case: 23-30088 Document: 00517000524 Page: 1 Date Filed: 12/13/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 23-30088 December 13, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Anthony Suber,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:22-CR-20-1
______________________________
Before Higginbotham, Stewart, and Southwick, Circuit
Judges.
Per Curiam: *
Anthony Suber appeals the 51-month sentence imposed following his
guilty-plea conviction of causing bodily injury by assaulting, resisting, or
impeding certain officers or employees. Specifically, Suber challenges the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.4.
Case: 23-30088 Document: 00517000524 Page: 2 Date Filed: 12/13/2023
No. 23-30088
six-level enhancement under U.S.S.G. § 3A1.2(c)(2) for assaulting a prison
official while in custody.
We review the district court’s interpretation and application of the
guidelines de novo and its factual findings for clear error. See United States v.
Perryman, 965 F.3d 424, 426 (5th Cir. 2020). “A factual finding is not clearly
erroneous as long as it is plausible in light of the record read as a whole.”
United States v. Sanders, 942 F.2d 894, 897 (5th Cir. 1991).
Suber contends that, because he was blinded and disoriented by
pepper spray, he neither knew nor had reasonable cause to believe that any
victim of his assault was a prison official as Section 3A1.2(c)(2) requires. The
record shows that officers orally ordered Suber to stop fighting with his
cellmate, deployed pepper spray, and then opened the cell door, after which
Suber crawled or rolled out of the cell and bit two officers while they tried to
restrain him. The district court’s finding that the enhancement was
warranted is plausible in light of the record as a whole.
AFFIRMED.
2