     Case: 18-11577   Document: 00515309010        Page: 1   Date Filed: 02/13/2020




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


                                    No. 18-11577
                                                                         FILED
                                                                  February 13, 2020
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff - Appellee

v.

PHILLIP SHAWN HORTON,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before DENNIS, GRAVES, and WILLETT, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Phillip Shawn Horton appeals the sentence imposed following his guilty
plea conviction for possession with intent to distribute 500 grams or more of
methamphetamine. Horton argues that the district court erred in assessing
criminal history points, failing to adjust his sentence for time served on an
undischarged state sentence, ordering the instant sentence to run
consecutively to anticipated state sentences, and failing to adequately explain
its decision to impose the sentence. Horton urges us to reverse and vacate his
sentence and remand for resentencing. We affirm his sentence.
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                                     No. 18-11577
                           FACTUAL BACKGROUND
      Horton was arrested for the instant offense as a result of an investigation
into the drug trafficking activities of Gilbert Martinez, who was responsible for
distributing large quantities of methamphetamine in the San Angelo, Texas
area. During the course of the investigation, Horton was identified as a courier
for Martinez. Horton was later pulled over by officers who seized a firearm
and five bags of methamphetamine totaling 1,942 grams from Horton’s vehicle.
Horton later divulged that he made three other trips for Martinez, but Horton
was not formally charged for the trips and the presentence investigation report
(“PSR”) counted them as “relevant conduct.” The probation officer calculated
Horton’s total offense level at 35 based on the quantity of drugs noted above.
Horton received a total of five criminal history points, based on state offenses
for possession of a controlled substance, terroristic threats, and possession of
drug paraphernalia, establishing a criminal history category of III.
Accordingly, his guidelines sentencing range was 210 to 262 months of
imprisonment.      The PSR also explicitly noted that the four pending state
charges in Green County, Texas were “unrelated to the instant offense” and
that the “court may impose the sentences to be served consecutive to the
instant offense.” Horton and the government filed statements adopting the
presentence report.
      At the sentencing hearing, the district court adopted the PSR’s factual
findings, background data, and guidelines calculations as its own. At the
government’s request, 1 the district court dismissed Horton’s conspiracy count




      1  The indictment against Horton included two counts. Count One listed, along with
Horton’s co-defendants Gilbert Martinez and Dora Elia Gaona, the offense of “conspiracy to
distribute and possess with intent to distribute 500 grams or more of methamphetamine.”
Count Two listed the offense of “possession with intent to distribute 500 grams or more of
methamphetamine.” At Horton’s sentencing, the government asked the court to dismiss
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                                    No. 18-11577
listed in the indictment and proceeded to sentencing on Horton’s possession
count. After the court asked if the defense had any evidence or argument,
Horton argued in favor of a sentence at the bottom of the guidelines range
based on his role in the offense, noting that the facts in the PSR indicated that
he “was essentially a mule” or “gofer” for codefendant Martinez’s drug
enterprise. Horton also asked the district court to consider running the instant
sentence concurrently with a state sentence that Horton was serving at the
time as a result of revocation of supervision for a controlled substance offense.
Horton made this request because the instant offense “occurred essentially at
the same time as the violations that led to the revocation of supervision . . .
and the imposition of that [state] sentence.” Horton also requested a facility
placement and participation in a substance abuse program.
      Without commenting on Horton’s requests, the district court asked if
Horton would like to make a statement. Horton declined. The district court
sentenced Horton to 262 months of imprisonment and five years of supervised
release with special conditions. The district court did not decide to run the
instant sentence concurrently with any anticipated sentence imposed in
Horton’s four pending state charges. The district court stated on the record its
reasons for imposing the sentence as “address[ing] the sentencing objectives of
punishment and deterrence” and the supervised release as necessary for
Horton to re-assimilate back into society. After announcing that Horton had
the right to appeal, the district court stated, “You may now stand aside.”
Horton filed a timely notice of appeal.




Count One (conspiracy) and proceed with sentencing on Count Two (possession). The court
granted the motion to proceed on Count Two only.
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                                  No. 18-11577
                                  ANALYSIS
      Horton’s arguments on appeal can be divided into two categories: one
based on the district court’s failure to consider relevant conduct in Horton’s
state convictions and the other based on the district court’s procedural errors.
      With respect to relevant conduct, Horton argues that the district court
erred in assessing criminal history points under U.S.S.G. §§ 4A1.1 and 4A1.2
because the conduct underlying two of his prior state convictions qualified as
relevant conduct to the instant offense. Horton cites to U.S.S.G. § 5G1.3(b)(2)
and contends that the district court erred in failing to order his sentence to run
concurrently with his undischarged state sentence because the sentences arose
from relevant conduct. Horton also argues that the district court erred by not
adjusting his sentence for time already served on his undischarged state
sentence pursuant to U.S.S.G. § 5G1.3(b)(1).        Horton maintains that the
district court erred in declining to concurrently run the sentence with
anticipated state sentences based on relevant conduct. U.S.S.G. § 5G1.3(c).
      With respect to procedural errors, Horton argues that the district court
erred in failing to explain its decision to run the sentence consecutively to the
undischarged state sentence and anticipated state sentence based on relevant
conduct. Horton also contends that his sentence is unreasonable because the
district court failed to consider factors in 18 U.S.C. § 3583(c) for a term of
supervised release. Finally, Horton maintains that the district court failed to
adequately explain pursuant to 18 U.S.C. § 3553(c)(1) its reason for imposing
the particular sentence.
                        I. Relevant Conduct Claims
      As an initial matter, the parties dispute which standard of review
applies. The first four arguments on appeal raise fact questions pertaining to
whether the conduct underlying his state offenses are sufficiently connected or


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                                       No. 18-11577
related to the underlying offense to qualify as relevant conduct 2 under U.S.S.G.
§ 1B1.3. See United States v. Nevels, 160 F.3d 226, 229 (5th Cir. 1998) (“The
district court’s determination of what constitutes relevant conduct for
sentencing purposes is a factual finding.”). We review factual findings for clear
error. United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). “Under the
clearly erroneous standard, we will uphold a finding so long as it is plausible
in light of the record as a whole.” United States v. Ekanem, 555 F.3d 172, 175
(5th Cir. 2009) (internal quotation and citation omitted).
       The government argues, however, that Horton failed to preserve his
arguments regarding relevant conduct at the district court. Accordingly, his
arguments on appeal pertaining to relevant conduct should be reviewed only
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009). Acknowledging his failure to properly object at the district
court, Horton concedes that plain error should apply to his arguments about
whether the district court erred in assessing criminal history points under
U.S.S.G. §§ 4A1.1 and 4A1.2, not adjusting his sentence for time served on an
undischarged state sentence pursuant to U.S.S.G. § 5G1.3(b)(1), and declining
to concurrently run the sentence with anticipated state sentences based on
relevant conduct pursuant to U.S.S.G. § 5G1.3(c). “Questions of fact capable
of resolution by the district court upon proper objection at sentencing can never


       2  Relevant conduct includes “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by the defendant . . . that were
part of the same course of conduct or common scheme or plan as the offense of conviction.”
U.S.S.G. § 1B1.3(a)(1)(A), (a)(2); see § 2D1.1; § 3D1.2(d). Two or more offenses may constitute
part of a common scheme or plan if they are “substantially connected to each other by at least
one common factor, such as common victims, common accomplices, common purpose, or
similar modus operandi.” § 1B1.3, cmt. (n.5(B)(i)). Offenses that do not qualify as a common
scheme or plan may be considered part of the same course of conduct “if they are sufficiently
connected or related to each other as to warrant the conclusion that they are part of a single
episode, spree, or ongoing series of offenses.” § 1B1.3, cmt. (n.5(B)(ii)). Relevant factors
include “the degree of similarity of the offenses, the regularity (repetitions) of the offenses,
and the time interval between the offenses.” § 1B1.3, cmt. (n.5(B)(ii)).
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                                       No. 18-11577
constitute plain error.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991)
(per curiam); see also United States v. Vital, 68 F.3d 114, 118-19 (5th Cir. 1995).
Accordingly, because Horton concedes that the challenges were not developed
in the district court, they cannot constitute plain error. 3
       However, the parties dispute whether Horton’s argument that the
district court “consider running” the sentence concurrently with the
undischarged state sentence was sufficiently specific to alert the district court
to U.S.S.G. § 5G1.3(b)(2)’s directive. The sentencing hearing reflects that
Horton asked for a concurrent sentence because “this offense occurred
essentially the same time as the violations that led to the revocation of that
supervision and the imposition of that [state] sentence.”                 Other than the
temporal proximity, Horton failed to put forth evidence or elaborate why his
state sentence for possession of 6.3 grams of methamphetamine and a firearm
was “part of the same course of conduct” as the federal offense or should
“warrant the conclusion that they are part of a single episode, spree, or ongoing
series of offenses.” U.S.S.G. §§ 1B1.3(a)(1)(A) and 1B1.3, cmt. (n.5(B)(ii)).
Indeed, the PSR contained information about Horton’s involvement with
Martinez’s drug enterprise, but the PSR did not make an explicit finding that
the state sentence was related to Horton’s role as Martinez’s courier of large
bundles of methamphetamine and cash. “[T]he district court is entitled to rely
upon the information in the PSR as long as the information bears some indicia
of reliability.” United States v. Leeds, 319 F. App’x 334, 336 (5th Cir. 2009)
(citing United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992)).                   “Mere



       3 Horton in his reply brief argues that we should not apply Lopez’s rule because it has
been undermined by United States v. Olano, 507 U.S. 725, 732-34 (1993) and United States
v. Calverley, 37 F.3d 160, 163-64 (5th Cir. 1994) (en banc). However, we recently explained
that those decisions addressed only legal error and did not overrule Lopez, and we decline to
“overturn this court’s precedent.” See United States v. Davis, 769 F. App’x 129, 130 (5th Cir.
2019); see also United States v. Lindsey, 774 F. App’x 261 (5th Cir. 2019).
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                                 No. 18-11577
objections do not suffice as competent rebuttal evidence.” United States v.
Parker, 133 F.3d 322, 329 (5th Cir. 1998).       “Furthermore, if no relevant
affidavits or other evidence is submitted to rebut the information contained in
the PSR, the court is free to adopt its findings without further inquiry or
explanation.” United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).
Accordingly, because this factual challenge was not developed in the district
court and Horton failed to sufficiently rebut the PSR, his challenge cannot
constitute plain error. Puckett v. United States, 556 U.S. 129 (2009) (holding
that the error must be “clear or obvious”). Even if we were to assume that
Horton sufficiently preserved this argument, the district court’s implicit
finding that the state offense involving a substantially smaller quantity of
drugs was not relevant to the federal offense is plausible in light of the record
as a whole.
                           II. Procedural Claims
      Horton also raises procedural arguments regarding the district court’s
failure to consider all of the sentencing factors and to adequately explain its
rationale in imposing the chosen sentence, including the decision to run the
sentence consecutively to his state sentences.
      Horton argues that the district court erred by failing to explain its
decision to deny his request to run his federal sentence concurrently with the
undischarged state sentence. We review the district court’s interpretation and
application of the Sentencing Guidelines de novo and its factual findings for
clear error. See United States v. Lawrence, 920 F.3d 331, 334 (5th Cir. 2019).
At sentencing, Horton referred to a temporal connection between the offenses,
which, without more, is insufficient to establish a relevant conduct
determination. Cf. United States v. Ortiz, 613 F.3d 550, 558 (5th Cir. 2010)
(finding no “distinctive similarities” or “common accomplices, suppliers, or
buyers between the two offenses” even though the defendant’s two drug
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                                  No. 18-11577
offenses occurred in the same building). Similarly, Horton failed to establish
a “regularity” of the offense because the first state offense involved a “relatively
small amount” of methamphetamine whereas the federal offense involved
“massive quantities of the drug.”       Id. at 558-59.      Given the absence of
elaboration on the relevant conduct, either by Horton or in the PSR, the district
court could have reasonably concluded that Horton’s request that it “consider
running” the sentence concurrently with his state sentence implicated the
policy statement of § 5G1.3(d), which provides in relevant part that “[i]n any
other case involving an undischarged term of imprisonment, the sentence for
the instant offense may be imposed to run concurrently, partially concurrently,
or consecutively to the prior undischarged” sentence. See also U.S.S.G. §
5G1.3(b), cmt. (n.2(D)) (providing an example of imposing a concurrent
sentence when the state offense involved the sale of 25 grams of cocaine and
the federal offense involved the sale of 90 grams of cocaine).      Accordingly, a
finding of clear error is precluded because we lack a “definite and firm
conviction that a mistake has been committed.” United States v. Rodriguez,
630 F.3d 377, 380 (5th Cir. 2011).
      As to the remaining procedural claims, Horton concedes that he did not
object to the adequacy of the explanation in the district court, but he contends
that his failure to do so should not result in plain-error review because, after
pronouncing the sentence, the district court told the parties, “you may stand
aside,” and, thus, Horton did not have a reasonable opportunity to object.
Indeed, we have found that requiring a formal objection can be futile where the
district court was openly hostile towards a party and continuously interrupted
its attempts to formally object. United States v. Castillo, 430 F.3d 230, 243
(5th Cir. 2005). However, as the government notes, we have addressed the
same “stand aside” comments before in United States v. Morales, 299 F. App’x
455, 457 (5th Cir. 2008). There, the defendant’s claim was subject to plain-
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                                   No. 18-11577
error review because the sentence was imposed in open court, his counsel was
present, and the court never expressed “anger, hostility, or unwillingness to
consider a proper objection.” Id. (emphasis added). Nothing in the record
reflects that the district court gave Horton, or indeed anyone, the impression
that a request for further explanation of the sentence would not be entertained
or that any objection on that basis would have been futile.
       Accordingly, we apply plain error, which requires a defendant to show
that “(1) there is an error or defect; (2) the legal error is clear or obvious, rather
than subject to reasonable dispute; and (3) the error affected the appellant’s
substantial rights.” Puckett, 556 U.S. at 135. If those “three prongs are
satisfied, the court of appeals has the discretion to remedy the error—
discretion which ought to be exercised only if the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id.
       Horton argues that the district court plainly erred by failing to explain
its decision to run his federal sentence consecutively to his anticipated state
sentences for unlawfully carrying a weapon and manufacturing/delivering
methamphetamine.        However, this claim fails because it is premised on
Horton’s admittedly unpreserved argument that those offenses were relevant
conduct. Indeed, the PSR stated that the district court had discretion to run
the sentence consecutively to Horton’s anticipated state sentences because the
pending charges were “unrelated” to the instant offense. As a result, no facts
were developed in the district court regarding relevant conduct, and the
district court had no opportunity to resolve those issues. Lopez, 923 F.2d at
50.
       Horton then contends that the district court plainly erred in failing to
articulate its consideration of 18 U.S.C. § 3553(a) factors for terms of
supervised release. See § 18 U.S.C. 3583(c). Horton does not challenge a
specific condition even though the district court imposed several conditions,
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                                  No. 18-11577
including abstention from certain drugs, participation in a drug dependence
treatment program, and participation in a mental health treatment program.
Although district courts have “wide discretion in imposing terms and
conditions of supervised release,” United States v. Paul, 274 F.3d 155, 164 (5th
Cir. 2001), the district court must “set forth factual findings to justify special
probation conditions” in terms of the 18 U.S.C. § 3553(a) factors. United States
v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014). The district court here stated
that imposing the special conditions was necessary to help Horton with re-
assimilation, obtaining suitable employment, and maintaining a law-abiding
lifestyle.   Accordingly, “the record sufficiently supports the special . . .
condition[s] imposed.” United States v. Dean, 940 F.3d 888, 891 (5th Cir. 2019).
Horton also has failed to establish the third prong of plain error because “he
fail[ed] to show that an [additional] explanation would have changed his
sentence.” United States v. Tang, 718 F.3d 476, 483 (5th Cir. 2013).
       Finally, Horton maintains that the district court plainly erred in failing
to explain its decision to impose the maximum 262-month sentence of the
guidelines range. Because Horton’s guideline range exceeds 24 months, he
maintains that the district court failed to state “the reason for imposing a
sentence at a particular point within the range.” 18 U.S.C. § 3553(c)(1). At
sentencing, Horton argued for a sentence at the bottom of the guidelines range
based on his role as a “mule” for Martinez’s drug enterprise. However, the
record here establishes that the district court stated on the record its specific
reasons to impose the sentence, namely to “adequately address the sentencing
objectives of punishment and deterrence.” See United States v. Smith, 440 F.3d
704, 707 (5th Cir. 2006) (holding district court need not engage in a “checklist
recitation of the [§] 3553(a) factors”). “When the judge exercises her discretion
to impose a sentence within the Guideline range and states for the record that
she is doing so, little explanation is required.” United States v. Mares, 402 F.3d
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511, 519 (5th Cir. 2005) (noting that the judge should “carefully articulate the
reasons” when imposing a non-guideline sentence). The sentencing transcript
reveals that the court based its sentencing decision on the facts presented in
the PSR and the 3553(a) factors. Horton fails to satisfy the third prong of the
plain-error analysis because he does not explain how the district court’s further
elaboration would have resulted in a shorter sentence. United States v. Hebron,
684 F.3d 554, 559 (5th Cir. 2012) (noting that the defendant “bears the burden
of showing with a reasonable probability that, but for the error, he would have
received a lesser sentence”).
                                CONCLUSION
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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