     Case: 14-51217      Document: 00513337927         Page: 1    Date Filed: 01/11/2016




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

                                                                                  FILED
                                    No. 14-51217                           January 11, 2016
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

v.

STERLING RANDALL BENNINGFIELD, also known as Sterling R.
Benningfield,

                                                 Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:05-CR-101-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Sterling Randall Benningfield appeals following his guilty-plea
conviction of one count of income tax evasion, for which he was sentenced to a
41-month term of imprisonment.             Benningfield seeks to challenge certain
enhancements to his offense level, and he argues that the appeal waiver




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-51217

provision of his plea agreement is unenforceable because he did not knowingly
waive his right to appeal his sentence.
      We assume without deciding that the waiver is unenforceable and
address instead the sentencing issues raised by the instant appeal. See United
States v. Story, 439 F.3d 226, 230 (5th Cir. 2006) (noting that an appeal waiver
does not implicate our jurisdiction). Accordingly, we DENY the Government’s
motion to dismiss the appeal based on the waiver provision.
      Benningfield argues that the district court erred by imposing a two-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1 (2000). As set
forth in the Presentence Report, this enhancement was imposed because
Benningfield, after meeting with government officials who were investigating
his tax evasion, fled to Mexico, where he remained as a fugitive for over nine
years. Benningfield contends that the enhancement should not have been
applied because his flight to Mexico was a pre-custodial evasion of arrest.
      As he concedes, Benningfield’s failure to make a contemporaneous
objection to the enhancement results in plain error review. See United States
v. Navejar, 963 F.2d 732, 734 (5th Cir. 1992). To establish plain error, the
appellant must show a forfeited error that is clear or obvious and that affects
his substantial rights; 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 Puckett v. United States, 556 U.S.
129, 135 (2009).
      We agree with the Government’s contention that, under our precedent,
the district court’s determination that Benningfield obstructed justice by
fleeing to Mexico during the investigation of his tax evasion offense is a factual
finding that can never constitute plain error. See United States v. Claiborne,
676 F.3d 434, 438 (5th Cir. 2012) (per curiam); United States v. Lopez, 923 F.2d

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                                 No. 14-51217

47, 50 (5th Cir. 1991). In his reply brief, Benningfield preserves for possible
en banc or Supreme Court review the question whether our precedent in this
regard is erroneous. As an alternative ground for our decision on this issue,
we conclude that the district court’s factual findings regarding Benningfield’s
prior escape from custody in Texas and his fugitive status in 1989 in Tennessee
support the district court’s ultimate conclusion that Benningfield obstructed
justice by fleeing to Mexico.
      We also may affirm the enhancement on any alternative ground
apparent from the record. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th
Cir. 1992). Following a review of the merits of Benningfield’s challenge to the
§ 3C1.1 enhancement, we conclude that Benningfield has not made the
requisite showing of clear or obvious error. See Puckett, 556 U.S. at 135. In
this respect, while we are cognizant that “avoiding or fleeing from arrest” is
ordinarily not covered by the enhancement, see § 3C1.1 cmt. n.5(D),
Benningfield’s flight to Mexico and his extended stay in that country as a
fugitive was obstructive and not an ordinary case of avoidance of arrest.
      Benningfield also challenges the imposition of a two-level enhancement
pursuant to U.S.S.G. § 2T1.1(b)(1). This issue, too, is subject to plain error
review due to the lack of a contemporaneous objection at sentencing. See
Navejar, 963 F.2d at 734. As explained below, assuming arguendo that the
district court committed clear or obvious error in applying the § 2T1.1(b)(1)
enhancement, we conclude that Benningfield is not entitled to relief because
he fails to show that the error affected his substantial rights. See Puckett, 556
U.S. at 135.
      “In the sentencing context, . . . an appellant can show an impact on
substantial rights—and therefore a basis for reversal on plain error review—
where the appellant can show a reasonable probability that, but for the district

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                                 No. 14-51217

court’s error, the appellant would have received a lower sentence.” United
States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). The appellant has the
burden of establishing a reasonable probability of receiving a lower sentence.
Id. at 647-48. Where, as here, the sentence imposed falls within both the
correct and incorrect guidelines, we have “shown considerable reluctance in
finding a reasonable probability that the district court would have settled on a
lower sentence,” and we “do not assume, in the absence of additional evidence,
that the sentence affects a defendant’s substantial rights.” United States v.
Blocker, 612 F.3d 413, 416 (5th Cir. 2010) (per curiam).
      Benningfield argues that there is a reasonable probability of a lower
sentence in view of the gap between the correct guidelines range (33 to 41
months of imprisonment) and the incorrect guidelines range (41 to 51 months
of imprisonment), in conjunction with the district court’s statements at
sentencing regarding his age and health. After a thorough examination of the
record, we have determined that Benningfield fails to meet his burden under
the plain error standard. See Davis, 602 F.3d at 647-48.
      AFFIRMED; MOTION TO DISMISS APPEAL DENIED.




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