indicating an argument’s futility absent supporting precedent
How later courts described this case
- indicating an argument’s futility absent supporting precedent
Written by the judges who cited it.
The opinion
Case: 14-30558 Document: 00512968357 Page: 1 Date Filed: 03/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30558
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 13, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
CHRISTOPHER L. BROWN,
Defendant-Appellant
Appeals from the United States District Court
for the Middle District of Louisiana
USDC No. 3:13-CR-146-1
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Christopher L. Brown pleaded guilty to conspiracy to possess with intent
to distribute five kilograms or more of cocaine, see 21 U.S.C. § 846; possession
of firearms in furtherance of a drug trafficking crime, see 18 U.S.C.
§ 924(c)(1)(A); and possession of a firearm by a convicted felon, see U.S.C.
§ 922(g)(1). The convictions arose from a sting operation involving a putative
robbery of a fictitious stash house. Brown appeals his 270-month cumulative
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-30558 Document: 00512968357 Page: 2 Date Filed: 03/13/2015
No. 14-30558
sentence, which consisted of concurrent 210-month terms each on the
conspiracy and felon-in-possession convictions and a consecutive 60-month
term on the conviction for possession of firearms in furtherance of a drug
trafficking crime. Pretermitting the question whether this appeal is barred by
the appeal waiver in the plea agreement, we affirm. See United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008); United States v. Story, 439 F.3d
226, 230-31 (5th Cir. 2006).
To the extent that Brown may be understood to assert a procedural
challenge under the bifurcated process for reasonableness review, the
challenge fails. See Gall v. United States, 552 U.S. 38, 46, 49-50 (2007).
Because he did not raise a procedural issue in the district court, Brown is
required to show plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he does, we may exercise our discretion “to remedy the error . . . if
the error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. A claim “subject to reasonable dispute” cannot constitute
plain error. Id.; United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009).
Brown cites no precedent of this circuit for his contentions that it was
error and a miscarriage of justice to ascribe 12 kilograms of cocaine to him
when calculating his guidelines range under the 2013 edition of the Sentencing
Guidelines. Brown stipulated that he conspired to steal 12 to 25 kilograms of
cocaine. A conspiracy defendant is accountable for the drug quantity
foreseeable by him. United States v. Quiroz-Hernandez, 48 F.3d 858, 870 (5th
Cir. 1995); cf. United States v. Burke, 431 F.3d 883, 886 (5th Cir. 2005).
Because Brown’s contentions are subject to reasonable dispute, there can be no
plain error. See Puckett, 556 U.S. at 135; Ellis, 564 F.3d at 377-78.
We reject also Brown’s contention that the sentence is substantively
unreasonable because the district court ought to have sentenced him below the
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Case: 14-30558 Document: 00512968357 Page: 3 Date Filed: 03/13/2015
No. 14-30558
guidelines range in light of what he deems to be the Government’s arbitrary
selection of drug quantity. Brown cites no circuit precedent to support his
contentions. Moreover, the district court emphasized that drug quantity was
hardly the most important consideration when selecting Brown’s sentence,
given Brown’s insistence that murdering all occupants of the stash house was
a necessity. See 18 U.S.C. § 3553(a).
Because his sentence is “within a properly calculated Guideline range,”
an inference arises that the district court considered “all the factors for a fair
sentence set forth in the Guidelines.” United States v. Mares, 402 F.3d 511,
519 (5th Cir. 2005). Such a sentence “is presumptively reasonable.” United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Brown’s suggestion that a
below-guidelines variance sentence would have been reasonable is not basis
enough “to justify reversal of the district court.” Gall, 552 U.S. at 51.
AFFIRMED.
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