United States v. Andrea Thompson , 537 F. App'x 499 ( 2013 )

Case: 12-51094 Document: 00512326665 Page: 1 Date Filed: 07/31/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 31, 2013
No. 12-51094
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff – Appellee
v.
ANDREA KAY THOMPSON,
Defendant – Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 6:12-CR-114-1
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Andrea Kay Thompson pleaded guilty to one count of unlawfully
transporting, transmitting, or transferring in interstate commerce stolen goods
with a value of $5,000 or more, in violation of 18 U.S.C. § 2314. She was
sentenced within the guidelines to 30 months of imprisonment and a three-year
term of supervised release.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 12-51094
For the first time on appeal, Thompson challenges her sentence, arguing
that the district court plainly erred in calculating the guidelines range by
applying a 14-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(H), which she
contends resulted in an unreasonable sentence.
We review sentences for reasonableness under an abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 46-50 (2007). This reasonableness
review involves two steps. Id. at 51. First, we determine whether the district
court committed any significant procedural error, such as improperly
calculating the guideline range. Id. If there is no procedural error or the error
is harmless, we review the substantive reasonableness of the sentence. Id.;
United States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009).
The district court’s calculation of the amount of loss under § 2B1.1 is a
factual finding that is reviewed for clear error. See United States v. Scher, 601
F.3d 408, 412 (5th Cir. 2010); United States v. Crawley, 533 F.3d 349, 356 (5th
Cir. 2008). However, because Thompson raised no objection to her sentence in
the district court, our review is for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To show plain error,
Thompson must show a forfeited error that is clear or obvious and that affects
her substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If
she makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. We have held that “[q]uestions of fact capable of resolution by
the district court upon proper objection at sentencing can never constitute
plain error.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991); see also
United States v. Claiborne, 676 F.3d 434, 438 (5th Cir. 2012).
In this case, the presentence report (PSR) noted the evidence relied upon
in making the loss determination, and the district court was “in a unique
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Case: 12-51094 Document: 00512326665 Page: 3 Date Filed: 07/31/2013
No. 12-51094
position to assess the evidence and estimate the loss based upon that evidence”
and was required only to “make a reasonable estimate of the loss.” § 2B1.1,
comment. (n.3(C)). Further, because the unobjected-to PSR had “some indicia
of reliability,” the district court was entitled to rely on it. Scher, 601 F.3d at
413. Thompson has, thus, failed to show that the district court’s loss
determination and application of the 14-level increase constituted plain error.
She also has failed to rebut the presumption of reasonableness given to her
properly calculated, within-guidelines sentence. See United States v. Rashad,
687 F.3d 637, 644 (5th Cir. 2012).
The judgment of the district court is AFFIRMED.
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