USA v. Douglas Beer
UNPUBLISHED OPINION FILED. [17-30159 Affirmed ] Judge: EGJ , Judge: PRO , Judge: CH Mandate pull date is 10/10/2017 for Appellant Douglas Beer [17-30159]
Date Filed: 09/19/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
September 19, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:16-CR-107-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Douglas Beer appeals the sentence imposed following his guilty plea to
possession of child pornography of a minor not yet 12 years of age. He contends
that the district court’s statements at the sentencing hearing indicate that it
plainly erred in concluding that it did not have the discretion to disagree with
the U.S.S.G. § 2G2.2 enhancements and impose a downward variance based
on the mitigating facts and circumstances in his case. Beer maintains that a
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 09/19/2017
downward variance was warranted because he had no criminal history, his
offense was passive possession, and he had attempted to overcome his
addictions to pornography and alcohol by attending individual and group
As Beer concedes, he did not raise this argument in the district court
and, therefore, review is limited to plain error. See United States v. GarciaPerez, 779 F.3d 278, 281 (5th Cir. 2015). To demonstrate plain error, Beer
must establish a clear or obvious error that affects his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
this court has the discretion to correct the error but only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. See id.
The record indicates that the district court did not fail to recognize that
it had the discretion to vary from the guidelines range. The district court
considered Beer’s lengthy sentencing memorandum, his letter to the court, the
letters written in his support, the Presentence Report, and the 18 U.S.C.
§ 3553(a) factors.
Based on that information, the district court made an
individualized assessment of his case and determined that a sentence slightly
below the advisory guidelines range would be appropriate under the
circumstances. Therefore, the record reflects that the district court did not fail
to recognize that it had the discretion to vary from the guidelines range and
did not commit reversible plain error when it sentenced Beer to a slight
downward variance of 57 months of imprisonment. See United States v. Clay,
787 F.3d 328, 332 (5th Cir. 2015); United States v. Robinson, 741 F.3d 588, 601
(5th Cir. 2014).
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