USA v. Spencer Pete

Filing

UNPUBLISHED OPINION FILED. [10-30206 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 05/27/2011 for Appellant Spencer Roy Pete [10-30206]

Case: 10-30206 Document: 00511469786 Page: 1 Date Filed: 05/06/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
No. 10-30206
Summary Calendar

May 6, 2011
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SPENCER ROY PETE,
Defendant-Appellant

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:09-CR-94-1

Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Spencer Roy Pete pleaded guilty to conspiracy to possess with intent to
distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. Although
Pete was subject to a mandatory minimum sentence of life imprisonment under
21 U.S.C. § 841(b)(1)(A), the district court sentenced Pete to 188 months in
prison based on the Government’s 18 U.S.C. § 3553(e) motion. The district court
ordered the sentence to run consecutively to Pete’s undischarged state probation

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30206 Document: 00511469786 Page: 2 Date Filed: 05/06/2011
No. 10-30206
revocation sentence. Pete appeals, arguing that the imposition of a consecutive
sentence is substantively unreasonable in light of § 3553(a).
We review a sentence, including its consecutive nature, for procedural
error and substantive reasonableness in light of the Sentencing Guidelines and
the factors set out in § 3553(a). Gall v. United States, 552 U.S. 38, 46, 51 (2007);
see United States v. Candia, 454 F.3d 468, 472 (5th Cir. 2006). Because Pete
failed to object to his sentence in the district court for the reasons he argues on
appeal, we will review for plain error. United States v. Mondragon-Santiago,
564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009); United States v.
Londono, 285 F.3d 348, 355 (5th Cir. 2002).
Pete’s arguments regarding the substantive reasonableness of his sentence
are unavailing. When determining a defendant’s sentence, the district court is
required to make an individualized assessment based on the facts presented.
Gall, 552 U.S. at 50.

In the instant case, the district court conducted the

individualized assessment required. It adopted the PSR’s findings of fact and
calculations and considered the parties’ arguments regarding the appropriate
sentence. It also reviewed the § 3553(a) factors, explaining how its chosen
sentence satisfied those factors.

The record reflects that the district court

“thoroughly and adequately articulated several § 3553(a) factors” that justified
the sentence it imposed. See United States v. Lopez-Velasquez, 526 F.3d 804, 807
(5th Cir.2008).
Pete argues that the district court failed to consider the nature and
circumstances of the offense and his own history and characteristics. In so
arguing, Pete seeks to have this court re-weigh the § 3553(a) factors.

A

defendant’s disagreement with the propriety of the sentence imposed does not
suffice to rebut the presumption of reasonableness that attaches to a
within-guidelines sentence. See, e.g., United States v. Rodriguez, 523 F.3d 519,
525-26 (5th Cir. 2008).

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Case: 10-30206 Document: 00511469786 Page: 3 Date Filed: 05/06/2011
No. 10-30206
Pete also argues that his sentence is substantively unreasonable because
his two prior felony convictions and his parole status were already accounted for
in the calculation of his criminal history category.

The district court was

entitled to give these factors additional weight even though they were already
accounted in the calculation of Pete’s advisory range. See Lopez-Velasquez, 526
F.3d at 807.
Pete further argues that his sentence resulted in an unwarranted
sentencing disparity under § 3553(a)(6) because his codefendants were sentenced
to less prison time. “A mere disparity of sentences among codefendants does not,
alone, constitute abuse of discretion.” United States v. Lemons, 941 F.2d 309,
320 (5th Cir. 1991). The record in the instant case does not reveal the reasons
for Pete’s codefendant’s sentences.

It also fails to reveal whether Pete is

similarly situated to his codefendants.

Thus, we are unable to determine

whether an unwarranted sentencing disparity occurred.
Pete also argues that the district court, by imposing a consecutive federal
sentence, essentially imposed a unlawful life sentence.

Pete’s argument is

unavailing. Had the Government not filed its § 3553(e) motion, Pete would have
been sentenced to life in prison. United States v. Krumnow, 476 F.3d 294, 297
(5th Cir. 2007); see also Kimbrough v. United States, 552 U.S. 85, 108 (2007).
Thus, Pete has not shown that his sentence was substantively
unreasonable, see Gall, 552 U.S. at 51, nor has he rebutted the presumption of
reasonableness that attaches to his within-guidelines sentence. See Rodriguez,
523 F.3d at 525-26. Pete has failed to show error, plain or otherwise.
AFFIRMED.

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