United States v. Leach

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2008
No. 06-41583
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LESLIE CHEREE LEACH
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:06-CR-15-ALL
Before JOLLY, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM:*
Leslie Cheree Leach appeals the sentence imposed following her guilty
plea conviction of possession with intent to distribute cocaine base (crack
cocaine). The district court sentenced Leach to 140 months of imprisonment,
which was the minimum sentence under the advisory guidelines range. Four
days after Leach’s sentencing, the United States Sentencing Commission
amended the Sentencing Guidelines, lowering the base offense levels for offenses
involving crack cocaine.
*
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should not be published and is not precedent except under the limited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.
No. 06-41583
After briefing was completed in this case, Leach moved to dismiss
appointed counsel and proceed pro se on appeal. Leach’s assertion of her right
to self-representation is untimely. See United States v. Wagner, 158 F.3d 901,
902-03 (5th Cir. 1998). Leach’s motion to dismiss counsel and proceed pro se is
DENIED.
Leach argues for the first time on appeal that her sentence should be
vacated and the case should be remanded for resentencing in light of the
amendments to the Sentencing Guidelines. Because Leach did not ask the
sentencing court to consider the pending amendments to the Sentencing
Guidelines, the issue is reviewed for plain error. See United States v.
Hernandez-Martinez, 485 F.3d 270, 272 (5th Cir.), cert. denied, 128 S. Ct. 325(2007). The district court imposed the sentence pursuant to an advisory
guidelines range that was properly calculated based on the Guidelines that were
in effect at the time Leach was sentenced. United States v. Rodarte-Vasquez,
488 F.3d 316, 322 (5th Cir. 2007) (quoting United States v. Kimler, 167 F.3d 889,
893 (5th Cir. 1999)); see U.S.S.G. § 1B1.11 (a), (b)(1). Accordingly, the district
court did not err by failing to consider the effect of the then-pending
amendments to the Sentencing Guidelines. Our review does not preclude future
consideration of this issue in a motion pursuant to 18 U.S.C. § 3582. See United
States v. Fields, 72 F.3d 1200, 1215 (5th Cir. 1996).
Leach also argues for the first time on appeal that her sentence is
substantively unreasonable because it is greater than necessary to satisfy the
goals of 18 U.S.C. § 3553(a) and because the district court imposed the sentence
without engaging in a significant and meaningful analysis of the mitigation
evidence she presented. Leach’s argument is unavailing. The district court’s
sentence is within a properly calculated advisory guidelines range and is,
therefore, presumptively reasonable. See United States v. Gall, 128 S. Ct. 586,
597 (2007). A sentencing is not required to address every § 3553(a) factor
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No. 06-41583
specifically and analyze its application to the defendant’s sentence. United
States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir. 2008).
The district court heard counsel’s arguments in support of a sentence
below that recommended by the guidelines, which included a discussion of her
family support and her physically abusive marriage. Thereafter, the district
court gave a thorough explanation for its decision to impose a sentence within
the advisory guidelines range. The transcript shows that the district court
adequately considered all of the § 3553(a) factors. Accordingly, Leach has not
shown that the sentence imposed was substantively unreasonable. See id.
AFFIRMED.
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