USA v. Dwight Bowling

Filing

UNPUBLISHED OPINION FILED. [14-60508 Affirmed ] Judge: EHJ , Judge: FPB , Judge: JEG Mandate pull date is 07/29/2015 for Appellant Dwight Bowling [14-60508]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60508
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
July 8, 2015

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
DWIGHT BOWLING,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:10-CR-137-1
Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
Dwight Bowling pleaded guilty to one count of obstruction of justice and
two counts of transportation of a minor in interstate commerce with intent to
engage in sexual activity. He challenges his 300-month sentence, which was
an upward variance from the applicable guidelines range. Bowling also argues
that his trial counsel was ineffective on various grounds.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Bowling asserts for the first time on appeal that the sentencing judge
referred to Bible verses at the sentencing hearing and, therefore, the sentence
was impermissibly affected by “external influences” and the judge’s religious
beliefs. If we assume, without deciding, that the Sixth Amendment prohibition
against a jury being exposed to external influences applies, Bowling has not
shown that the district court’s sentencing decision was affected by outside
factors or otherwise violated due process prohibitions against sentencing based
upon impermissible factors. See Zant v. Stephens, 462 U.S. 862, 885 (1983).
The record reflects that the judge, rather than relying on his religious beliefs,
referred to Bible verses, apparently from memory, in response to Bowling’s
pervasive invocation of his religion during his allocution; the judge sought to
impart to Bowling that his conduct was contrary to his professed beliefs and
underscore that he violated a well-established principle that minors should be
protected from harm. See United States v. Lemons, 941 F.2d 309, 320 (5th Cir.
1991). In any event, the record does not support that the judge sentenced
Bowling more severely because of religion. Instead, the judge found that an
upward variance was proper due to the heinous nature of Bowling’s crime,
which involved the long-term sexual abuse of a minor and an attempt to induce
the minor to lie under oath to enable Bowling to evade prosecution. Bowling
therefore has not shown plain error. See Puckett v. United States, 556 U.S.
129, 135 (2009).
Furthermore, Bowling maintains that his sentence was procedurally and
substantively unreasonable. He contends that the district court substantially
varied from the guidelines range without presenting a sufficient justification.
Bowling additionally argues that the district court gave significant weight to
an irrelevant and improper factor, i.e., Bible verses. Bowling seemingly failed
to preserve the specific arguments that he raises and, thus, plain error would

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apply. See United States v. Tang, 718 F.3d 476, 482-83 (5th Cir. 2013). We do
not resolve the applicable standard of review because Bowling’s arguments fail
under the lesser abuse-of-discretion standard. See United States v. Rodriguez,
523 F.3d 519, 525 (5th Cir. 2008).
The record establishes that the district court adequately explained the
decision to vary upwardly. The district court, after providing Bowling and his
counsel the opportunity to speak and considering the presentence report and
applicable guidelines range, reasoned that a variance was appropriate based
on specific articulated 18 U.S.C. § 3553(a) factors. The district court also set
forth case-specific reasons that merited the variance; the district court noted
the extreme nature of the offense and the fact that Bowling sought to conceal
the crime by urging the minor to lie. Thus, the district court’s explanation was
sufficient. See United States v. Diehl, 775 F.3d 714, 723-24 (5th Cir. 2015);
United States v. Fraga, 704 F.3d 432, 439 (5th Cir. 2013).
Likewise, the record supports that Bowling’s sentence was substantively
reasonable. The district court assessed the facts and arguments and cited casespecific reasons to support its finding that a within-guidelines sentence would
not achieve the sentencing goals set forth in § 3553(a). Also, the district court
did not give excessive weight to an improper factor; the record does not support
that the sentencing decision was based upon the Bible or the judge’s religious
beliefs but rather on the nature of the offense and the need to protect the
public. See Fraga, 704 F.3d at 440. Although the variance was significant, we
have upheld similar or more substantial variations.

See United States v.

McElwee, 646 F.3d 328, 345 (5th Cir. 2011) (listing cases). Given the deference
that is due to a district court’s consideration of the § 3553(a) factors, see Gall
v. United States, 552 U.S. 38, 51 (2007), and the district court’s reasons for its

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sentencing decision, Bowling has not shown that the sentence is substantively
unreasonable, see McElwee, 646 F.3d at 344-45.
Bowling did not assert his ineffective-assistance claims in the district
court. Accordingly, the instant record is not sufficiently developed to allow for
a fair consideration of the claims. See United States v. Isgar, 739 F.3d 829, 841
(5th Cir.), cert. denied, 135 S. Ct. 123 (2014).
Accordingly, the judgment of the district court is AFFIRMED.

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