USA v. Christopher Kinsey

Filing

UNPUBLISHED OPINION FILED. [12-10548 Affirmed ] Judge: JLW , Judge: JWE , Judge: JEG Mandate pull date is 04/17/2013 for Appellant Christopher Ray Kinsey [12-10548]

Case: 12-10548

Document: 00512188645

Page: 1

Date Filed: 03/27/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-10548
Summary Calendar

March 27, 2013
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHRISTOPHER RAY KINSEY, also known as Bandido Skinny,
Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-193-2

Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Christopher Ray Kinsey pleaded guilty to conspiracy
to possess with the intent to distribute methamphetamine and possession with
the intent to distribute a detectable amount of methamphetamine. He now
appeals his within-guidelines, concurrent 235-month sentences as procedurally
and substantively unreasonable.
We review sentences for reasonableness by engaging in a bifurcated
review. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). First, we ensure that the
sentencing court committed no significant procedural error, such as “failing to
calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence-including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51.
Kinsey concedes that he did not object to his sentence on procedural
grounds, so that the procedural issue he raises is reviewed for plain error. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). A plain
error is a forfeited error that is clear or obvious and affects the defendant’s
substantial rights. United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009). “To
affect the defendant’s substantial rights, the defendant must demonstrate that
the error affected the outcome of the district court proceedings. In the context
of sentencing, we ask whether the error increased the term of a sentence, such
that there is a reasonable probability of a lower sentence on remand.” United
States v. Escalante-Reyes, 689 F.3d 415, 424 (5th Cir. 2012) (internal quotation
marks and citation omitted). Even if the foregoing elements are shown, we have
the discretion to correct the error only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Ellis, 564 F.3d at 377
(internal quotation and citation omitted).
Kinsey asserts that his sentence is procedurally unreasonable because the
district court gave inadequate reasons in light of his nonfrivolous arguments for
a below-guidelines sentence. Sentences that fall within the advisory guidelines
range require “little explanation.” Mondragon-Santiago, 564 F.3d at 362. The
district court heard and considered Kinsey’s arguments then stated, “I’m going
to take into account a lot of the things you’ve said in deciding where to impose
a sentence and, frankly it’s going to be significantly lower than I had intended
originally.” The court explained that Kinsey’s sentence “is one that adequately
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and appropriately addresses all the factors the Court should consider under”
§ 3553(a).
These stated reasons are sufficient to satisfy us that the district court
considered Kinsey’s arguments and had “a reasoned basis for exercising [its] own
legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356-58
(2007). As Kinsey cannot show that a more detailed explanation by the district
court would have changed the sentence he received, his claim fails on plain error
review. See Mondragon-Santiago, 564 F.3d at 365.
Kinsey also contends that his sentence is substantively unreasonable
because (1) it is greater than needed to meet the sentencing goals of § 3553(a) in
light of his subsequent rehabilitation and (2) the amounts of drugs he sold or
guarded were set unilaterally by undercover agents. We consider the
“substantive

reasonableness

of

the

sentence

imposed

under

an

abuse-of-discretion standard.” Gall, 552 U.S. at 51. Therefore, Kinsey’s withinguidelines sentence is “presumptively reasonable.” United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006).
As Kinsey has not shown that “sentencing entrapment” constitutes a factor
that should have received significant weight in determining his sentence, he has
not established that the district court’s failure to impose a lesser sentence on
this basis rendered his sentence unreasonable. See United States v. Jones, 664
F.3d 966, 984 (5th Cir. 2011), cert. denied, 132 S. Ct. 2728 (2012). Accordingly,
Kinsey has not alleged any basis on which his participation in transporting and
guarding methamphetamine was not conduct that the district court properly
considered in determining his sentence. And, the district court did consider
Kinsey’s rehabilitative efforts: They were factored into the selection of a withinguidelines sentence after the district court had originally intended for Kinsey to
serve more than 240 months in prison by ordering his sentences to run
consecutively.

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As Kinsey has not shown that the district court plainly erred regarding its
stated reasons for selecting the sentence and has not shown that his sentence is
substantively unreasonable, the judgment of the district court is AFFIRMED.

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