United States v. Traybeon Ford

Case: 13-20155 Document: 00512616981 Page: 1 Date Filed: 05/02/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-20155 FILED
Summary Calendar May 2, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TRAYBEON LEKEITH FORD,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-155-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Traybeon Lekeith Ford has moved
for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Ford has responded to counsel’s motion and asserts that his appeal
raises three nonfrivolous issues.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-20155
First, Ford contends that the district court erred in denying a reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1. This court “will affirm
a sentencing court’s decision not to award a reduction under § 3E1.1 unless it
is without foundation, a standard of review more deferential than the clearly
erroneous standard.” United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th
Cir. 2008) (internal quotation marks and citation omitted). Although a
defendant who pleads guilty prior to trial and truthfully admits relevant
conduct may qualify for the reduction, “this evidence may be outweighed by
conduct of the defendant that is inconsistent with such acceptance of
responsibility.” § 3E1.1 cmt. n.3. The district court denied a reduction for
acceptance of responsibility and applied an enhancement for obstruction of
justice on the ground that, after being released on bond, Ford violated his
conditions of supervised released and failed to appear in court for three years.
Conduct resulting in an obstruction-of-justice enhancement ordinarily
indicates that the defendant has not accepted responsibility. § 3E1.1 cmt. n.4.
Ford has not set forth any circumstance showing that his case is one of the
extraordinary ones in which both §§ 3C1.1 and 3E1.1 may apply. See id.
Second, Ford contends that the district court erred in failing to explain
its reason for an upward variance. When imposing a variance, the court must
“adequately explain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fairness in sentencing.” Gall v. United
States, 552 U.S. 38, 50 (2007). Contrary to Ford’s assertion, the district court
explained the basis for the upward variance both at sentencing and in the
Statement of Reasons. The record reflects that the court considered a number
of factors in imposing the variance, including Ford’s failure to appear for three
years and Ford’s possession of an assault rifle that had been converted to a
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No. 13-20155
fully automatic machine gun, along with magazines capable of holding 40 to 43
rounds of ammunition, in a house where small children lived.
Finally, Ford contends that there was no evidence that the firearm in his
possession was stolen, so as support the district court’s enhancement under
U.S.S.G. § 2K2.1(b)(4)(A). Because Ford did not object to the enhancement in
the district court, this court’s review is for plain error only. See United States
v. Gonzalez, 484 F.3d 712, 714 (5th Cir. 2007). The Presentence Report (PSR)
indicated that the Harris County Sheriff’s Office had run the firearm found in
Ford’s room through a computer database and the firearm was reported stolen
out of the Houston Police Department on October 17, 1999. The PSR further
stated that the status of the firearm as stolen was “verified by the Bureau of
Alcohol, Tobacco, Firearms and Explosives.” “Generally, a PSR bears sufficient
indicia of reliability to permit the sentencing court to rely on it at sentencing.
The defendant bears the burden of demonstrating that the PSR is inaccurate;
in the absence of rebuttal evidence, the sentencing court may properly rely on
the PSR and adopt it.” United States v. Ollison, 555 F.3d 152, 164 (5th Cir.
2009) (internal quotation marks and citation omitted). Ford did not object to
the above factual information in the PSR or present rebuttal evidence.
Accordingly, Ford has not demonstrated error, plain or otherwise.
After reviewing counsel’s brief, Ford’s response, and the relevant
portions of the record, we concur with counsel’s assessment that the appeal
presents no nonfrivolous issue for appellate review. Accordingly, counsel’s
motion for leave to withdraw is GRANTED, counsel is excused from further
responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
Ford’s motions for the appointment of new counsel are DENIED. See United
States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
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