United States v. Avniel Anthony

Case: 16-11509 Document: 00514083556 Page: 1 Date Filed: 07/21/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11509 FILED
Summary Calendar July 21, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
AVNIEL AWAN ANTHONY,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-128-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Avniel Awan Anthony appeals his 72-month, above-guidelines sentence
for making a false statement in a passport application. See 18 U.S.C. § 1542.
Anthony first contends that the district court committed reversible plain error
in calculating his guidelines range by applying separate enhancements for
obstruction of justice and reckless endangerment based solely on the same
conduct—namely, his attempt to escape police custody while awaiting
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11509
extradition at a Mexican airport by crawling into, and subsequently falling
from, the airport ventilation ducts. See U.S.S.G. §§ 3C1.1 & 3C1.2. Second,
Anthony asserts error because the district court’s Statement of Reasons (SOR)
orders his sentence to run consecutively to his sentences on unrelated state
charges, whereas the court’s oral pronouncement of the sentence did not
mention consecutive sentences.
In relation to his double enhancement claim, we need not determine
whether Anthony has shown a clear or obvious error that affected his
substantial rights because, in any event, he fails to demonstrate that any such
error affected the fairness, integrity, or public reputation of judicial
proceedings. See Puckett v. United States, 556 U.S. 129, 135 (2009); United
States v. Andaverde-Tinoco, 741 F.3d 509, 523 (5th Cir. 2013). The difference
between the top of the correct and incorrect guidelines ranges—12 months and
16 months, respectively—is four months. Although Anthony’s 72-month
sentence is 60 months above the top of the properly calculated range, it is the
result of an intentional above-guidelines variance by the district court, not an
attempt to sentence Anthony within an incorrect higher range. Cf. United
States v. Martinez-Rodriguez, 821 F.3d 659, 664 (5th Cir. 2016); United States
v. Price, 516 F.3d 285, 289 (5th Cir. 2008). To that end, the district court
explained that a 72-month sentence was necessary because the guidelines
range failed to adequately account for the facts of the instant case or Anthony’s
long history of violent criminal behavior. See 18 U.S.C. § 3553(a); United
States v. Wikkerink, 841 F.3d 327, 330-39 (5th Cir. 2016) (affirming, on fourth
plain error prong, nonguidelines sentence 180 months above top of correct
guidelines range where district court based variance on facts of the case and
defendant’s criminal history). Accordingly, the guidelines calculation error
had little probable effect on Anthony’s final sentence, and he fails to
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demonstrate that the exercise of this court’s corrective discretion is warranted.
See Puckett, 556 U.S. at 135.
Anthony further argues that there is a discrepancy between the district
court’s written and oral pronouncements of his sentence with respect to
whether his federal sentence is to run consecutively to or concurrently with his
state sentences. See generally United States v. Martinez, 250 F.3d 941, 942
(5th Cir. 2001). There is no discrepancy, however; the district court was silent
at sentencing regarding how Anthony’s federal and state sentences were to be
served, whereas the SOR instructs that they are to be served consecutively.
The court’s intent is thus gleaned from the entire record. See United States v.
McAffee, 832 F.2d 944, 946 (5th Cir. 1987). The SOR, which is part of that
record, clarifies the district court’s intent to run Anthony’s federal sentence
consecutively to his state sentences. See United States v. Tafoya, 757 F.2d
1522, 1529 (5th Cir. 1985). Anthony therefore fails to show an abuse of
discretion in the district court’s judgment. See United States v. Vega, 332 F.3d
849, 851 n.1 (5th Cir. 2003).
AFFIRMED.
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