USA v. Frederick Loften

Filing

UNPUBLISHED OPINION FILED. [09-51057 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 12/27/2010 for Appellant Frederick Ronnell Loften [09-51057]

USA v. Frederick Loftense: 09-51057 Ca

Document: 00511311636 Page: 1 Date Filed: 12/03/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51057 S u m m a r y Calendar December 3, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f ­ A p p e lle e , v. F R E D E R I C K RONNELL LOFTEN, also known as Fredrick R. Loften, D e fe n d a n t ­ A p p e lla n t .

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 6:09-CR-123-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* F r e d e r ic k Ronnell Loften appeals his conviction and sentence for violating T e x a s Penal Code § 22.04(a)(3) by causing injury to a child on the Fort Hood M ilit a r y Reservation. The offense is assimilated into federal law by the

A s s im ila t i v e Crimes Act (ACA), 18 U.S.C. §§ 7(3), 13, which makes state law a p p lic a b le to conduct occurring on lands acquired by the federal government w h e n the act or omission is not made punishable by an enactment of Congress.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Dockets.Justia.com

Case: 09-51057 Document: 00511311636 Page: 2 Date Filed: 12/03/2010 No. 09-51057 L o ft e n argues that the ACA does not incorporate § 22.04 because the fe d e r a l statute criminalizing simple assault, 18 U.S.C. § 113(a)(5), governs his c o n d u c t . At least, he contends that he should have been punished under § 113. Loften further argues that the district court erred by failing to apply the S e n te n c in g Guidelines in his case. See U.S.S.G. § 2X5.1. He notes that his s e n te n c in g range under what he contends is the most analogous Guideline, § 2A2.3, would have been lower than the two-year minimum term of im p r is o n m e n t that § 22.04 mandated for his offense. He thus contends that the s t a t e minimum sentence should have become his sentencing range. See U.S.S.G. § 5G1.1(b). Loften argues that the district court erred by failing to give him n o tic e that it intended to impose a sentence that exceeded the minimum s e n te n c e , and by failing to state its reasons for the decision in open court. Finally, Loften argues that the district court erred by failing to consider the a v a ila b ilit y of probation under state law. A t sentencing Loften preserved his final argument for review by r e q u e s tin g a sentence of probation. The arguments Loften made in the district c o u r t were not sufficient to put the district court on notice of the basis of the r e m a in in g arguments he now raises on appeal. See United States v. Duhon, 541 F .3 d 391, 396 (5th Cir. 2008). Accordingly, we review those arguments for plain e r r o r only. Puckett v. United States, --- U.S. ---, 129 S. Ct. 1423, 1429 (2009); U n ite d States v. Key, 599 F.3d 469, 476-77 (5th Cir.), petition for cert. filed (Sept. 4 , 2010) (No. 10-6291). L o ft e n has not shown that the assimilation of § 22.04 in his case via the A C A or his sentencing pursuant to § 22.04 constituted clear or obvious error. See Lewis v. United States, 523 U.S. 155, 164 (1998). However, the district court w a s obligated to apply the Sentencing Guidelines in Loften's case and erred by fa ilin g to consider whether an analogous Guideline existed that could be used in d e t e r m in in g Loften's sentencing range. See United States v. Calbat, 266 F.3d 3 5 8 , 362 (5th Cir. 2001). That error did not affect Loften's substantial rights. 2

Case: 09-51057 Document: 00511311636 Page: 3 Date Filed: 12/03/2010 No. 09-51057 A review of the applicable statutes reveals no analogous Guideline. Because the d is t r ic t court found the Sentencing Guidelines inapplicable and imposed a nong u id e lin e s sentence, it was not required to give Loften notice that it intended to im p o s e a sentence that exceeded the state minimum sentence. See United States v . Mejia-Huerta, 480 F.3d 713, 722-23 (5th Cir. 2007). T h e district court erred by failing to state in open court the reasons for its s e n te n c in g decision; however, Loften has not shown that the error affected his s u b s t a n t ia l rights. The district court's written statement of reasons and

a d o p t io n of the presentence report provided explanation sufficient to allow m e a n in g fu l review of Loften's sentence. See United States v. Gore, 298 F.3d 322, 3 2 5 -2 6 (5th Cir. 2002). The district court sentenced Loften towards the low end o f the statutory sentencing range, and Loften has not explained how the outcome o f his case might have been different had the district court provided a more t h o r o u g h verbal explanation for its choice of sentence. F in a lly , Loften's argument that the district court erred by failing to c o n s id e r his eligibility to be sentenced to probation or 180 days of confinement a s a condition of probation lacks merit. The record does not support Loften's a lle g a t io n that the district court was not aware of the various sentencing a lte r n a tiv e s . A F F IR M E D .

3