     Case: 16-30897      Document: 00514174616         Page: 1    Date Filed: 09/28/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-30897                                   FILED
                                  Summary Calendar                        September 28, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CHARLES E. SPANN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:16-CR-20-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
        Charles E. Spann pleaded guilty to conspiracy to defraud the United
States in violation of 18 U.S.C. § 371 and was sentenced, inter alia, to a within-
guidelines prison term of 36 months. He raises four assignments of error on
appeal. Additionally, Spann moves to supplement the appellate record with
his recent medical records and to have this court file his medical records under
seal.


        *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 16-30897

      We first address Spann’s motion. In seeking to supplement the record,
Spann argues that his medical records are pertinent to his claim that the
district court imposed a substantively unreasonable sentence. We may not
consider facts that were not before the district court at the time of the
challenged ruling. See Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26
(5th Cir. 1999); United States v. Flores, 887 F.2d 543, 546 (5th Cir. 1989).
Because the district court did not consider Spann’s recent medical records at
sentencing, his motion is denied. Any references to this and other non-record
matters have not been considered.
      As to Spann’s four assignments of error, he first challenges the district
court’s application of a two-level role adjustment pursuant to U.S.S.G.
§ 3B1.1(c). Spann’s assertion that his co-defendants played greater roles does
not preclude application of the adjustment.      See United States v. Cooper,
274 F.3d 230, 247 (5th Cir. 2001). Furthermore, it is unavailing for Spann to
challenge the adjustment by asserting that he lacked the requisite mens rea to
support his conviction when, during rearraignment, he stated, “That’s correct,”
in response to the district court asking whether he knew the bonuses were
fraudulent when he was receiving them. See Blackledge v. Allison, 431 U.S.
63, 74 (1977). Likewise, it is unavailing for Spann to argue that the seven
factors set forth in the commentary to § 3B1.1 were not present in his case
because those factors are not relevant to the application of the § 3B1.1(c) role
adjustment. See § 3B1.1, comment. (n.4). Finally, in light of Spann’s role in
managing the assets of the conspiracy by signing off on the fraudulent
justifications for the bonuses, the record plausibly supports application of the
adjustment. See United States v. Ochoa-Gomez, 777 F.3d 278, 282-83 (5th Cir.
2015).




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                                 No. 16-30897

      In his next assignment of error, Spann, for the first time on appeal,
challenges the substantive reasonableness of his sentence. See United States
v. Heard, 709 F.3d 413, 425 (5th Cir. 2013). He argues that the district court
abused its discretion by failing to give sufficient weight to certain 18 U.S.C.
§ 3553(a) factors, including his lack of criminal history, age, medical history,
and lengthy work history for various housing authorities; the seriousness of
his offense and his actual involvement; the lower sentences received by his co-
defendants; the lower sentences received by similarly-situated defendants on
a local and national level; the very small propensity that he will recidivate and
be a risk to the public; and the other types of sentences available, such as
probation. We discern no error, plain or otherwise. The record reflects that
the district court considered the § 3553(a) factors and concluded that a within-
guidelines sentence was warranted. Spann’s arguments regarding the district
court’s weighing of those factors is insufficient to rebut the presumption of
reasonableness attaching to his within-guidelines sentence on appellate
review. See United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011); United
States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008).        That we “might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall v. United States,
552 U.S. 38, 51 (2007).
      Spann, in his third assignment of error, argues that the district court
plainly erred by failing to provide an adequate explanation of its sentencing
decision. Before ordering a within-guidelines sentence, the court considered
the presentence report, the guidelines range, statements from counsel and
Spann, sentencing memoranda submitted by the parties, letters offered in
support of Spann, and all of the § 3553(a) factors, particularly Spann’s lack of
criminal history and his involvement in the offense. The court also observed



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                                 No. 16-30897

that the offense could not have been accomplished without Spann and involved
over a half million dollars. Although the court’s explanation was brief, it was
not clearly or obviously erroneous.        See Rodriguez, 523 F.3d at 525-26.
Moreover, Spann has not shown how an additional explanation would have
altered his sentence.    Thus, he has not demonstrated any effect on his
substantial rights. See United States v. Mondragon-Santiago, 564 F.3d 357,
364-65 (5th Cir. 2009). Accordingly, as to this claim, Spann fails to make the
requisite showing. See id. at 361, 364-65.
      Finally, Spann argues that trial counsel rendered ineffective assistance
by failing to understand the elements of the charged offense and by failing to
advise him that there was an insufficient factual basis to support his conviction
due to the purported absence of evidence proving his fraudulent intent.
Because Spann did not raise this issue during his criminal proceedings in the
district court, the record is not sufficiently developed to permit a fair
evaluation of the merits of the claim. See United States v. Isgar, 739 F.3d 829,
841 (5th Cir. 2014). Accordingly, we decline to consider it without prejudice to
collateral review. See id.
      AFFIRMED; MOTION DENIED.




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