     Case: 19-50356       Document: 00515276583         Page: 1     Date Filed: 01/17/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                              FILED
                                                                         January 17, 2020
                                     No. 19-50356                          Lyle W. Cayce
                                   Summary Calendar                             Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JASON BRENT MCCULLOUGH,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:18-CR-183-5


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Jason Brent McCullough pleaded guilty, without a plea agreement, to
one count of conspiracy to distribute and possess methamphetamine, with
intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district
court sentenced him to, inter alia, a within-Sentencing Guidelines term of 292-
months’ imprisonment.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-50356

      McCullough challenges his sentence, asserting:         it was procedurally
unreasonable because the court failed to address mitigating factors and treated
the Guidelines as mandatory; it was substantively unreasonable because it did
not account for factors that should have received significant weight; and the
court erred by failing to order his sentence run concurrently with his
anticipated state sentence, pursuant to Guideline § 5G1.3(c).
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      McCullough did not object to his sentence’s procedural or substantive
reasonableness in district court, but, he contends he preserved his
reasonableness challenges by seeking a lower sentence at his sentencing
hearing. To preserve an issue for appeal, however, defendant’s “objection must
be sufficiently specific to alert the district court to the nature of the alleged
error and to provide an opportunity for correction”. United States v. Nesmith,
866 F.3d 677, 679 (5th Cir. 2017) (citations omitted). Where the crux of the
objection is the same as the contention raised on appeal, the error is preserved.
See id. (citation omitted). Otherwise, “the issue is considered forfeited, and we
review only for plain error”. See, e.g., United States v. Chavez-Hernandez, 671
F.3d 494, 497 (5th Cir. 2012) (citations omitted).



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      In district court, McCullough requested leniency; this request, however,
did not alert the court to the alleged reasonableness errors and, therefore,
failed to preserve the issues. See, e.g., United States v. Heard, 709 F.3d 413,
425 (5th Cir. 2013) (holding defendant’s requesting below-Guidelines sentence
did not preserve objection to sentence’s reasonableness).        In addition, as
McCullough concedes, he did not preserve his Guideline § 5G1.3(c) contention
that his federal sentence should run concurrently with any state sentence.
Consequently, our review is only for plain error for each of the three issues
presented on appeal. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012).
      Under that standard, McCullough must show a forfeited plain error
(clear or obvious error, rather than one subject to reasonable dispute) that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes that showing, we have the discretion to correct such
reversible plain error, but generally should do so only if it “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings”. Id.
      To satisfy procedural-reasonableness requirements, the sentencing court
must state “the reasons for its imposition of the particular sentence”. See 18
U.S.C. § 3553(c). “The sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” Rita v.
United States, 551 U.S. 338, 356 (2007) (citation omitted). When the court
imposes a within-Guidelines sentence, “little explanation is required”. United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). And, we may infer a court’s
reasons from the record. See United States v. Whitelaw, 580 F.3d 256, 263–65
(5th Cir. 2009).




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      McCullough does not show the requisite clear or obvious error. As in
Rita, the record shows that the court considered McCullough’s contentions and
supporting evidence, and was aware of the relevant circumstances, but
ultimately found them “insufficient to warrant a sentence lower than the
Guidelines range”.     See Rita, 551 U.S. at 358.       Moreover, many of the
mitigating factors advocated by McCullough—including his age, substance-
abuse issues, short previous prison sentences, and family obligations—
appeared in the presentence investigation report (PSR), which the court
adopted in full. See id. at 359 (relying on “context and the record” in rejecting
challenge to court’s explanation for sentence). The court found the advisory
Guidelines sentencing range was “fair and reasonable” in this instance. Its
statement of reasons was, therefore, legally sufficient.       See id. at 358–59
(noting court’s determination within-Guidelines sentence was “appropriate”
sufficient when “the record makes clear that the sentencing judge considered
the evidence and arguments”).
      Further, no evidence suggests the court believed the Guidelines to be
mandatory.      It acknowledged the possibility of departing from the
recommended Guidelines range before determining a within-Guidelines
sentence would be “fair and reasonable”.
      As for substantive reasonableness, and as discussed supra, our precedent
holds McCullough’s unpreserved challenge is reviewed for plain error. United
States v. Holguin-Hernandez, 746 F. App’x 403, 403–04 (5th Cir. 2018) (per
curiam) (citation omitted), cert. granted, 139 S. Ct. 2666 (2019). In any event,
McCullough’s substantive-reasonableness challenge fails, whether it is
reviewed for plain error or, in the light of certiorari’s being granted in Holguin-
Hernandez, under the less-demanding abuse-of-discretion standard.




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      As also discussed supra, a sentence imposed within a properly calculated
Guidelines sentencing range is presumptively reasonable. Rita, 551 U.S. at
347. Defendant may rebut this presumption “by showing that the sentence
does not account for factors that should receive significant weight, gives
significant weight to irrelevant or improper factors, or represents a clear error
of judgment in balancing sentencing factors”. United States v. Rashad, 687
F.3d 637, 644 (5th Cir. 2012) (citation omitted).
      McCullough contends the court failed to consider his age—46 as of the
PSR’s preparation—and his belief that he is likely to die in prison as a result
of his sentence, which he asserts makes it unreasonable. But McCullough
referenced his age at sentencing and referred to a within-Guidelines sentence
as “virtually a death sentence”. Additionally, the record shows the court relied
on 18 U.S.C. § 3553’s sentencing factors in finding a within-Guidelines
sentence “fair and reasonable”. McCullough, therefore, cannot overcome the
presumption of reasonableness applicable to his within-Guidelines sentence.
See id. (citation omitted). Consequently, he cannot show the court either
committed clear or obvious error, or abused its discretion, in imposing his
within-Guidelines sentence.
      Regarding McCullough’s third, and final, claim, that the court should
have ordered his sentence run concurrently with his anticipated state
sentence, this implicates the factual question of whether his state-offense
conduct was relevant conduct to the federal offense. See U.S.S.G. § 5G1.3(c)
(“If . . . a state term of imprisonment is anticipated to result from another
offense that is relevant conduct to the instant offense of conviction[,] . . . the
sentence for the instant offense shall be imposed to run concurrently to the
anticipated term of imprisonment.”); United States v. Nevels, 160 F.3d 226, 229
(5th Cir. 1998) (“The district court’s determination of what constitutes relevant



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                                  No. 19-50356

conduct for sentencing purposes is a factual finding.” (citation omitted)). Such
“[q]uestions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error”. United States v.
Lindsey, 774 F. App’x 261, 261 (5th Cir. 2019) (per curiam) (quoting United
States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991)).
      To the extent McCullough raises a substantive-reasonableness claim on
this basis, it fails even if reviewed for abuse of discretion. As with his earlier
substantive-reasonableness challenge, the record shows the court relied on the
§ 3553(a) sentencing factors in determining McCullough’s sentence. The court
was “in a superior position to find facts and judge their import under § 3553(a)”.
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (per
curiam) (citation omitted). Reweighing these factors is outside the scope of our
review. See Gall, 552 U.S. at 51.
      AFFIRMED.




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