United States v. Gilbert

U
Case: 20-30459     Document: 00515863141         Page: 1     Date Filed: 05/14/2021




              United States Court of Appeals
                   for the Fifth Circuit                           United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                  No. 20-30459                        May 14, 2021
                                Summary Calendar                     Lyle W. Cayce
                                                                          Clerk

   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Steven Dewayne Gilbert,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                     for the Western District of Louisiana
                            USDC No. 5:19-CR-3-1


   Before Jolly, Graves, and Costa, Circuit Judges.
   Per Curiam:*
          Steven Dewayne Gilbert pleaded guilty to conspiracy to possess with
   intent to distribute cocaine and was sentenced at the bottom of the guidelines
   range to 188 months of imprisonment. On appeal, Gilbert argues that his
   sentence is procedurally unreasonable because the district court did not


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-30459      Document: 00515863141           Page: 2     Date Filed: 05/14/2021




                                     No. 20-30459


   adequately explain the reasons for its sentence. Gilbert’s request for a
   downward variance was not sufficient to preserve this issue for appeal;
   consequently, our review is for plain error. See United States v. Coto-
   Mendoza, 

986 F.3d 583

, 586 (5th Cir. 2021).
          To establish plain error, Gilbert must show a forfeited error that is
   clear or obvious and that affects his substantial rights. See Puckett v. United
   States, 

556 U.S. 129

, 135 (2009). If he makes such a showing, we have the
   discretion to correct the error but only if it “‘seriously affect[s] the fairness,
   integrity or public reputation of judicial proceedings.’”

Id. (alteration in
original)

(quoting United States v. Olano, 

507 U.S. 725

, 736 (1993)).
          The district court stated that it had received Gilbert’s sentencing
   memorandum and character letters in advance of the sentencing hearing, and
   it listened to Gilbert’s arguments for a downward variance. The district
   court also stated that it had selected the sentence after considering the 18
   U.S.C. § 3553(a) sentencing factors, including Gilbert’s history, personal
   characteristics, and involvement in the offense. This is “enough to satisfy”
   us that the district court “considered the parties’ arguments” and had “a
   reasoned basis for exercising [its] own legal decisionmaking authority.” Rita
   v. United States, 

551 U.S. 338

, 356 (2007). Thus, Gilbert has not shown a
   clear or obvious error. See 

Puckett, 556 U.S. at 135

; 

Coto-Mendoza, 986 F.3d
at 586-87

.
          Gilbert also argues for the first time in a Federal Rule of Appellate
   Procedure 28(j) letter that in light of the Third Circuit’s decision in United
   States v. Nasir, 

982 F.3d 144

(3d Cir. 2020) (en banc), his conviction for
   conspiracy to possess with intent to distribute cocaine no longer qualifies as
   a controlled substance offense for purposes of the career offender
   enhancement under U.S.S.G. § 4B1.1. Because Gilbert did not challenge the
   career offender enhancement in his opening brief, we will not consider the




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Case: 20-30459     Document: 00515863141           Page: 3   Date Filed: 05/14/2021




                                    No. 20-30459


   issue. See United States v. Sanchez-Villalobos, 

412 F.3d 572

, 577 (5th Cir.
   2005), abrogated on other grounds by Carachuri-Rosendo v. Holder, 

560 U.S. 563

   (2010).
          Accordingly, the judgment of the district court is AFFIRMED.




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