United States v. Shawn Jollivette

Case: 14-31141 Document: 00513032225 Page: 1 Date Filed: 05/06/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-31141
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
May 6, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff−Appellee,
versus
SHAWN A. JOLLIVETTE, also known as Shon Alik Jolivette,
Defendant−Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:13-CR-137-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Shawn Jollivette appeals his 36-month sentence for interstate transpor-
tation of a stolen motor vehicle in violation of 18 U.S.C. § 2312. He claims that
the district court erred by failing to comply with U.S.S.G. § 4A1.3(a)(4)(B)
(2013) when it upwardly departed from the guidelines range of 18 to 24
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-31141 Document: 00513032225 Page: 2 Date Filed: 05/06/2015
No. 14-31141
months. Because he did not present that contention to the district court, this
court’s review is for plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
Where a district court determines that the extent and nature of the
defendant’s criminal history warrant an upward departure from criminal his-
tory category VI, it is to follow the method set forth in § 4A1.3(a)(4)(B) for cal-
culating the extent of the departure. See United States v. Mejia-Huerta, 480
F.3d 713, 723 (5th Cir. 2007). Such a departure is made by adjusting the
offense level “incrementally down the sentencing table to the next higher
offense level.” § 4A1.3(a)(4)(B). The court should consider, and state for the
record that it has considered, each intermediate offense level before arriving
at the sentence. See United States v. Lambert, 984 F.2d 658, 662–63 (5th Cir.
1993) (en banc); § 4A1.3(a)(4)(B). Nonetheless, the court is not required to
explain why it rejected intermediate levels, provided that its explanation for
the departure makes clear, implicitly or explicitly, why the intermediate levels
are inadequate and the chosen level is appropriate. See United States v.
Zuniga-Peralta, 442 F.3d 345, 348 n.2 (5th Cir. 2006); United States v.
Daughenbaugh, 49 F.3d 171, 175 (5th Cir. 1995).
The presentence report reflects a lengthy and serious criminal history.
Moreover, as the district court determined, Jollivette had a criminal history
score of 19, which produced a criminal history category of VI, while a criminal
history score of 13 also produces the criminal history category of VI. Aside
from concerns regarding criminal history, the district court set forth two addi-
tional bases for the sentence, neither of which Jollivette challenges on appeal.
First, the court determined that the upward departure was warranted because
of U.S.S.G. § 5K2.9, p.s. Second, the court decided that the 36-month sentence
was warranted based on the 18 U.S.C. § 3553(a) factors.
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No. 14-31141
By failing to question the determinations that the sentence was war-
ranted based on § 5K2.9, p.s., and § 3553(a), Jollivette has abandoned any such
challenges. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir.
2010). Finally, he fails to show a reasonable probability that he would have
received a lesser sentence but for the alleged errors. See United States v. Davis,
602 F.3d 643, 647 (5th Cir. 2010). He has therefore failed to establish that the
district court committed reversible plain error. See id.
The judgment of sentence is AFFIRMED.
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