USA v. Andre Redmond

Filing

UNPUBLISHED OPINION FILED. [09-60903 Affirmed] Judge: JLW , Judge: RHB , Judge: FPB. Mandate pull date is 10/05/2010 for Appellant Andre Redmond [09-60903]

USA v. Andre Redmond

Doc. 0

Case: 09-60903

Document: 00511233062

Page: 1

Date Filed: 09/14/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60903 S u m m a r y Calendar September 14, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. A N D R E REDMOND, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Northern District of Mississippi U S D C No. 4:08-CR-115-3

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* A n d r e Redmond appeals the 120-month sentence imposed following his g u ilt y -p le a conviction for conspiracy to receive and possess stolen firearms, p o s s e s s io n of a firearm by a convicted felon, stealing a firearm, and receiving and p o s s e s s in g a stolen firearm. He contends: the district court erred by applying a n upward departure without giving him prior notice, as required by FED. R. C RIM. P. 32(h); by failing to provide written reasons for the claimed departure; a n d , by applying the claimed departure based upon a prohibited factor.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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B e c a u s e Redmond did not raise the prior-notice issue in district court, we r e v ie w only for plain error. See United States v. Campos-Maldonado, 531 F. 3d 3 3 7 , 339 (5th Cir. 2008). Reversible plain error exists where a clear or obvious e r r o r affects defendant's substantial rights. E.g., United States v. Baker, 538 F .3 d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009); see also Puckett v . United States, 129 S. Ct. 1423, 1429 (2009). Even then, we have discretion w h e t h e r to correct such an error and, generally, will do so only if it seriously a ffe c t s the fairness, integrity, or public reputation of judicial proceedings. Baker, 5 3 8 F.3d at 332. T h e district court imposed a non-guidelines sentence that was a result of a n upward variance from the advisory-guideline-sentencing range, not, as c la im e d by Redmond, an upward departure. See United States v. Mejia-Huerta, 4 8 0 F.3d 713, 721 (5th Cir. 2007). A district court is not required to provide a d v a n c e notice before applying an upward variance. Irizarry v. United States, 1 2 8 S. Ct. 2198, 2202-04 (2008). Accordingly, the district court did not commit e r r o r by not giving Redmond notice prior to sentencing. See id. Redmond also contends: the district court failed to provide written reasons fo r the claimed departure; and remand is required because the resulting s e n te n c e was too high. See 18 U.S.C. § 3553(c)(2). Although Redmond did not r a is e this issue in district court, this contention is a challenge solely to the w r it t e n judgment; and Redmond did not have an opportunity to object to it. Therefore, we review for abuse of discretion. See United States v. Warden, 291 F .3 d 363, 365 n.1 (5th Cir. 2002). I n its written statement of reasons (SOR), the district court stated that the v a r ia n c e was based upon Redmond's "lengthy criminal history, the fact he was a r r e s t e d on new felony charges while on pretrial release", and certain specified 1 8 U.S.C. § 3553(a) sentencing factors. The court further explained that it had c o n s id e r e d the advisory-guideline-sentencing range, the statutory sentence r a n g e s , and the § 3553(a) factors, and that it concluded that a sentence outside 2

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o f the guidelines range better achieved the purposes of sentencing.

At

s e n te n c in g , the district court augmented its written reasons with an oral e x p la n a t io n for the sentence. By explaining in the SOR the facts and sentencing fa c t o r s that were the basis for the sentence and complementing its reasons with a n explanation at sentencing, the district court satisfied the requirement of § 3553(c)(2) that it provide written reasons for the sentence. See United States v . Gonzalez, 445 F.3d 815, 819-20 (5th Cir. 2006). F in a lly , Redmond claims the sentence is unreasonable because it was b a s e d upon a prohibited factor: his arrest on new felony charges while free on b o n d pending sentencing. He maintains: consideration of that arrest was im p r o p e r because it had not resulted in a conviction; and remand for r e s e n t e n c in g is required because the district court's claimed failure to provide s p e c ific reasons for the sentence makes it impossible to determine whether the d is t r ic t court would have imposed the same sentence without considering the c la im e d impermissible factor. Because Redmond did not assert in the district c o u r t that his sentence was unreasonable or that the district court considered a n impermissible factor, this issue is reviewed only for plain error. See United S ta te s v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). At sentencing, the district court explained the facts and sentencing factors o n which the sentence was based. The presentence investigation report and the in d ic t m e n t to which Redmond pleaded guilty showed: Redmond participated in a conspiracy to steal firearms from a police department while he was an inmate; R e d m o n d arranged to transfer the firearms to Chicago; Redmond had a long c r im in a l history; and, Redmond was arrested on a new felony charge while free o n bond pending sentencing. A lt h o u g h we have held that prior arrests, standing alone, cannot be the s o le basis for an upward departure, see United States v. Jones, 444 F.3d 430, 434 (5 t h Cir. 2006), "[t]his court has not . . . held that prior arrests may not be fa c t o r e d into a non-Guidelines sentence pursuant to § 3553(a)", United States v. 3

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L o p e z -V e la s q u e z , 526 F.3d 804, 807 (5th Cir. 2008). Therefore, this sentence was n o t unreasonable. See id. at 807-08. Restated, there was no error. A F F IR M E D .

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