Case: 19-11178     Document: 00515526136         Page: 1    Date Filed: 08/13/2020




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

                                                                           FILED
                                No. 19-11178                         August 13, 2020
                              Summary Calendar
                                                                      Lyle W. Cayce
                                                                           Clerk
 United States of America,

                                                           Plaintiff—Appellee,

                                     versus

 Anthony Keith Freeney,

                                                       Defendant—Appellant.


                 Appeal from the United States District Court
                     for the Northern District of Texas
                          USDC No. 3:17-CR-664-1


 Before King, Smith, and Wilson, Circuit Judges.
 Per Curiam:*
        A jury convicted Anthony Keith Freeney of three offenses: (1)
 possession of firearms by a felon; (2) possession of a controlled substance
 with intent to distribute; and (3) possession of a firearm in furtherance of a
 drug-trafficking crime. On each of the first two counts, the district court


        *
          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 opinion should not be published and is not precedent except under the limited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.
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                                    No. 19-11178


 imposed concurrent 72-month sentences, upwardly varying from the
 guidelines range of 51 to 63 months. On the remaining count, the district
 court imposed a mandatory consecutive sentence of 60 months under 18
 U.S.C. § 924(c)(1)(A)(i), for a total of 132 months of imprisonment.
        Aggrieved, Freeney appeals. He contends that the evidence was
 insufficient to support the jury’s verdict and that the district court erred in
 admitting audiotapes of his jail telephone calls. Freeney also asserts that the
 district court’s above-guidelines sentence was substantively unreasonable.
        First, Freeney asserts that the evidence was insufficient to support the
 jury’s verdict. We review Freeney’s sufficiency challenge for plain error
 because he did not preserve it in the district court. See United States v.
 Campbell, 775 F.3d 664, 668 (5th Cir. 2014). Under this standard, Freeney
 must show (1) a forfeited error (2) that is clear or obvious and (3) that affects
 his substantial rights. See United States v. Delgado, 672 F.3d 320, 329 (5th
 Cir. 2012) (en banc). If Freeney meets these three requirements, we may
 correct the error only if it “seriously affect[s] the fairness, integrity or public
 reputation of judicial proceedings.”        Id. (internal quotation marks and
 citation omitted). Given the “obviousness” requirement of the second
 prong of the plain-error standard, we reverse only if “the record is devoid of
 evidence pointing to guilt or if the evidence is so tenuous that a conviction is
 shocking.” Id. at 330–31. (internal quotation marks and citation omitted).
        Against the record in this case, Freeney fails to demonstrate either
 plain error or insufficiency of the evidence. Freeney stipulated that the
 firearms that he was charged with possessing had previously traveled in
 interstate commerce. He also stipulated that he had a prior felony conviction
 and that, on the date he allegedly possessed the firearms in question, he knew
 he had been previously convicted of a felony offense. The evidence at trial
 showed that firearms and heroin were found at the residence of Freeney’s




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                                    No. 19-11178


 mother, within a room agents described as Freeney’s bedroom. Freeney had
 departed the residence shortly before it was searched, and the firearms,
 heroin, and items consistent with the distribution of narcotics were found
 near a cell phone associated with Freeney. Additionally, Freeney’s jail
 telephone calls indicated his knowledge of the firearms found at the
 residence, as well as his possession of the heroin. This evidence was
 sufficient, under the applicable standard of review, to sustain Freeney’s
 convictions for possession of firearms by a felon and possession of a
 controlled substance with intent to distribute. See Rehaif v. United States, 139
 S. Ct. 2191, 2194 (2019); United States v. Huntsberry, 956 F.3d 270, 279 (5th
 Cir. 2020); Delgado, 672 F.3d at 330–31; United States v. Sagaribay, 982 F.2d
 906, 912 (5th Cir. 1993).
        As for his third count, Freeney contends that the evidence
 insufficiently linked the firearms to drug trafficking.         But the illegally
 possessed firearms were found loaded, operable, and in close proximity to
 heroin and other items related to drug distribution. We therefore conclude
 that the evidence was sufficient, under the applicable standard of review, to
 sustain Freeney’s conviction for possession of a firearm in furtherance of a
 drug trafficking crime. See Delgado, 672 F.3d at 330–31; United States v.
 Ceballos-Torres, 218 F.3d 409, 414–15 (5th Cir.), as amended on denial of reh’g
 en banc, 226 F.3d 651 (5th Cir. 2000).
        Next, Freeney challenges the authenticity of the audiotapes of his jail
 telephone calls. However, Freeney waived his authentication challenge by
 failing to object on this basis in the district court. See United States v. Monkey,
 725 F.2d 1007, 1011 n.4 (5th Cir. 1984). Alternatively, Freeney has not shown
 plain error regarding the authentication issue. See United States v. Barlow,
 568 F.3d 215, 219–20 (5th Cir. 2009).




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                                   No. 19-11178


        Freeney also asserts that the audiotapes’ admission into evidence
 violated the Confrontation Clause, the audiotapes were substantially more
 prejudicial than probative under Federal Rule of Evidence 403, and they
 constituted hearsay under Federal Rule of Evidence 802. But we decline to
 address these evidentiary issues because Freeney first raised them in his reply
 brief. See United States v. Anderson, 5 F.3d 795, 801 (5th Cir. 1993).
        Finally, Freeney contends that his 72-month sentence is substantively
 unreasonable. Freeney asserts that the district court failed properly to
 balance the sentencing factors of 18 U.S.C. § 3553(a) and instead
 overemphasized his criminal history and risk of violence. We review the
 substantive reasonableness of above-guidelines sentences for abuse of
 discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).
        Considering the totality of the circumstances and giving appropriate
 deference to the district court’s consideration of the § 3553(a) factors, we
 cannot conclude that the district court abused its discretion in imposing
 Freeney’s sentence. See United States v. Fraga, 704 F.3d 432, 439–41 (5th
 Cir. 2013). We have upheld significantly greater variances. See, e.g., United
 States v. Key, 599 F.3d 469, 475–76 (5th Cir. 2010) (upholding a 216-month
 sentence where the upper limit of the guidelines range was 57 months);
 United States v. Smith, 417 F.3d 483, 492–93 (5th Cir. 2005) (affirming a 120-
 month sentence where the maximum under the guidelines range was 41
 months).
        AFFIRMED.




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