United States v. Ross

Case: 22-40431 Document: 00516712330 Page: 1 Date Filed: 04/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-40431 April 14, 2023
Summary Calendar Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Henry Lamar Ross,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:20-CR-19-1
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
Henry Ross was convicted of possessing a firearm and ammunition
after a felony conviction and was sentenced to 80 months, above the advisory
guideline range of 51 to 63 months. On appeal, Ross maintains that the sen-
tence is procedurally and substantively unreasonable, and he asks us to view
a purported deficiency in the trial transcript as prejudicial.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40431 Document: 00516712330 Page: 2 Date Filed: 04/14/2023
No. 22-40431
Sentences are generally reviewed for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007). Although Ross concedes that some of
his sentencing arguments are unpreserved, and therefore subject to plain-
error review, we need not address that point because the standard of review
is not dispositive. See United States v. Burney, 992 F.3d 398, 400 (5th Cir.
2021). We review a district court’s application of the guidelines de novo and
its factual findings for clear error. United States v. Gomez-Valle, 828 F.3d 324,
327 (5th Cir. 2016).
Ross contends there was insufficient evidence to support findings at
sentencing that he was on parole at the time of the offense and that a sub-
stance found in a backpack was marihuana. When presented with facts that
“have an adequate evidentiary basis with sufficient indicia of reliability,” a
sentencing court may adopt them without further inquiry if the defendant
“does not present rebuttal evidence or otherwise demonstrate” that the
information is unreliable. United States v. Trujillo, 502 F.3d 353, 357 (5th Cir.
2007) (internal quotation marks and citation omitted). Because Ross has not
shown that statements about his parole history in the presentence report
were false or unreliable, he fails to establish that the district court erred by
accepting those statements. See United States v. Harris, 702 F.3d 226, 230
(5th Cir. 2012). Ross also has not shown that it was clearly erroneous for the
court to conclude that evidence presented at trial sufficiently proved that the
substance in the backpack was marihuana. See Trujillo, 502 F.3d at 357.
A non-guideline sentence is substantively unreasonable if it “(1) does
not account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” Burney, 992 F.3d
at 400 (internal quotation marks and citation omitted). Ross contends that
because his criminal history was already reflected in the guideline range, it
was improper for the court to rely on that history to support an above-
2
Case: 22-40431 Document: 00516712330 Page: 3 Date Filed: 04/14/2023
No. 22-40431
guidelines sentence. He is mistaken. See United States v. Brantley, 537 F.3d
347, 350 (5th Cir. 2008).
Ross’s final claim concerns the trial transcript. At one point, the tran-
script states that the superseding indictment was read in open court; the
reading itself is not transcribed. Although Ross describes that as a significant
omission and asks us to view it as presumptively prejudicial, he makes no
showing of prejudice. There is also no indication that Ross sought to correct
any material omissions or misstatements in the record. See Fed. R. App.
P. 10(e). Nor does he offer any excuse for failing to do so. We accordingly
decline to consider this claim. See United States v. Hinojosa, 958 F.2d 624,
632–33 (5th Cir. 1992); see also Richardson v. Henry, 902 F.2d 414, 415–16 (5th
Cir. 1990); Buckelew v. United States, 575 F.2d 515, 519–20 (1978).
AFFIRMED.
3