United States v. Carrick Mango

Case: 14-51296 Document: 00513375638 Page: 1 Date Filed: 02/11/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-51296
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 11, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
CARRICK MANGO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:14-CR-73-1
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Carrick Mango was convicted of one count of tampering with a witness,
victim, or informant and one count of obstruction of justice. Mango appeals his
sentence, arguing that the district court erred in assessing his offense level
under U.S.S.G. § 2X3.1 pursuant to the cross-reference in § 2J1.2(c)(1).
Specifically, Mango contends that this court’s interpretation of § 2X3.1,
comment. (n.1) in United States v. Kimbrough, 536 F.3d 463, 467 (5th Cir.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-51296 Document: 00513375638 Page: 2 Date Filed: 02/11/2016
No. 14-51296
2008), and United States v. Cihak, 137 F.3d 252, 264 (5th Cir. 1998), relied on
an interpretative rule known as the last antecedent rule and that Kimbrough
and Cihak should be reconsidered in light of the Supreme Court’s comments
about the last antecedent rule in Paroline v. United States, 134 S. Ct. 1710,
1721 (2014). According to Mango, interpreting § 2X3.1, comment. (n.1) based
on the last antecedent rule also conflicts with the rules and policies governing
relevant conduct under § 1B1.3.
The district court’s interpretation and application of the Guidelines is
ordinarily reviewed de novo. Kimbrough, 536 F.3d at 465. However, plain
error review applies here because Mango’s objections in the district court were
insufficient to alert the district court of his instant argument regarding
Paroline and the last antecedent rule. See United States v. Guerrero-Robledo,
565 F.3d 940, 946 (5th Cir. 2009). In any event, his argument fails even under
de novo review because Paroline’s comments about the last antecedent rule do
not undermine this court’s decisions in Kimbrough and Cihak.
This court explained its interpretation of § 2X3.1, comment. (n.1) in
Kimbrough, 536 F.3d at 466-68, and Paroline does not call that interpretation
into doubt. Under the rule of orderliness, we follow a prior decision unless
there is an intervening change in law; that intervening change must be
“unequivocal, not a mere hint” of a likely Supreme Court ruling. United States
v. Fields, 777 F.3d 799, 807 (5th Cir. 2015)(rejecting argument that Supreme
Court’s interpretation of one statute would overrule Fifth Circuit precedent
construing a different statute)(internal citations and quotation marks
omitted). Kimbrough and Cihak control in this case. See United States v.
Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002)(“mere ruminations” in
Court opinions do not permit overruling of prior precedent by a panel).
AFFIRMED.
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