Petition for Writ of Certiorari — Christopher A. Bernard, Petitioner v. United States

Case: 22-30278

Document: 66-1

Page: 1

Date Filed: 03/31/2023

United States Court of Appeals

for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit

FILED

No. 22-30278

Summary Calendar

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March 31, 2023

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Christopher A. Bernard,

Defendant—Appellant,

consolidated with

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No. 22-30279

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United States of America,

Plaintiff—Appellee,

versus

Christopher Antrell Bernard,

Defendant—Appellant.

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Appeals from the United States District Court

for the Western District of Louisiana

USDC Nos. 5:20-CR-139-1, 5:08-CR-303-1

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Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam: *

Christopher Antrell Bernard was sentenced within the guidelines

range to 262 months in prison after pleading guilty to possessing a firearm in

furtherance of drug trafficking. He appeals, challenging the denial of a

motion to suppress and raising a claim of sentencing error. Bernard also

appealed the judgment revoking his supervised release in a separate matter.

However, because he does not brief any challenge to the revocation or the

revocation sentence, he has abandoned those issues. See Yohey v. Collins, 985

F.2d 222, 224-25 (5th Cir. 1993).

In considering the denial of a motion to suppress, this court reviews

factual findings for clear error and conclusions of law de novo. United States

v. Reyes, 963 F.3d 482, 487 (5th Cir. 2020). Bernard argues that the

magistrate judge and the district court should not have credited the testimony

of two police officers that they detected a strong odor of marijuana near his

car. The question for this court is not whether it believes the officers or even

whether it finds their testimony plausible. See United States v. Casteneda, 951

F.2d 44, 48 (5th Cir. 1992). “Rather, the question is whether . . . the

witness[es] testified to something that physical laws tell us could not have

happened.” Id. Because Bernard does not show that the officers attested to

impossibilities, he fails to show clear error. See Reyes, 963 F.3d at 487.

Bernard’s remaining argument is that the district court explained his

sentence inadequately by not addressing his arguments for a downward

variance. As he acknowledges, our review is for plain error because he failed

to raise this issue at sentencing. See United States v. Whitelaw, 580 F.3d 256,

259 (5th Cir. 2009). To establish plain error, a defendant must show (1) an

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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error (2) that is clear or obvious and (3) that affected his substantial rights.

Puckett v. United States, 556 U.S. 129, 135 (2009). The record reflects that

the district court saw no reason to vary from the guidelines range despite

Bernard’s arguments, which it acknowledged. The court also referred to its

consideration of the 18 U.S.C. § 3553(a) factors, including Bernard’s

personal characteristics and what the court described as his extensive

criminal history.

It is not clear or obvious that this explanation was

insufficient, and Bernard accordingly fails to make the requisite showing. See

Puckett, 556 U.S. at 135.

For the foregoing reasons, the judgments of the district court are

AFFIRMED.

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