     Case: 19-30825      Document: 00515407173         Page: 1    Date Filed: 05/06/2020




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


                                    No. 19-30825                                  FILED
                                  Summary Calendar                             May 6, 2020
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARVIN RAY LOUCIOUS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:18-CR-226-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Marvin Ray Loucious pleaded guilty to one count of possession with
intent to distribute methamphetamine and one count of possession of a firearm
in furtherance of a drug trafficking offense. The district court sentenced him
to 87 months of imprisonment on the possession count and a consecutive term
of five years on the firearm count. It also imposed concurrent five-year terms
of supervised release.       Loucious argues that his sentence is substantively


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 19-30825        Document: 00515407173          Page: 2     Date Filed: 05/06/2020


                                        No. 19-30825

unreasonable because it is greater than necessary to satisfy the 18 U.S.C.
§ 3553(a) sentencing factors.
       We review a preserved challenge 1 to the substantive reasonableness of a
sentence under the abuse of discretion standard. See Gall v. United States,
552 U.S. 38, 51 (2007). Loucious does not provide any convincing argument
that the district court erred in balancing the sentencing factors. 2 The district
court heard Loucious’s arguments for a sentence below the guidelines range
and mandatory minimum, including his emphasis on his lack of criminal
history and steady employment record. The district court also heard Loucious’s
apology, adopted the findings and conclusions of the presentence report,
reiterated the guidelines ranges, and cited its consideration of the § 3553(a)
factors. It specifically stated that it sentenced Loucious at the bottom of the
guidelines range on the possession count because of his consistent employment
record and lack of criminal history. Loucious has not shown that the district
court, when imposing sentence, failed to consider a significant factor,
considered an improper factor, or made a clear error of judgment in balancing
the relevant factors. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009). His disagreement with the sentence imposed does not warrant reversal.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). Loucious has not



       1   Although an argument can be made for plain error review given the particular
arguments raised on appeal, because Loucious cannot prevail under either standard of
review, we apply the less deferential standard. See also Holguin-Hernandez v. United States,
140 S. Ct. 762, 764 (2020).
       2 Loucious’s primary argument is that the district court was required to group the

two counts of conviction together. However, as the Government correctly notes, Loucious was
convicted of violating 18 U.S.C. § 924(c) as Count 2, which requires (in this case) a consecutive
sentence of five years. A § 924(c) conviction cannot be grouped with other counts. U.S.S.G. §
3D1.1(b)(1). It must be independently determined. U.S.S.G. § 5G1.2(a). The district court
did exactly that, sentencing Loucious to the bottom of the sentencing guidelines on Count 1
and imposing the consecutive statutory minimum for Count 2.



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                                No. 19-30825

rebutted the presumption of reasonableness accorded to his within-guidelines
sentence. See United States v. Tuma, 738 F.3d 681, 695 (5th Cir. 2013).
     AFFIRMED.




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