     Case: 16-30796       Document: 00513951089         Page: 1     Date Filed: 04/13/2017




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

                                     No. 16-30796                                    FILED
                                   Summary Calendar                              April 13, 2017
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

QUENTRELL D. FOUNTAIN,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CR-151-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Quentrell D. Fountain pleaded guilty, pursuant to a plea agreement, to
one count of discharging a firearm during the commission of a crime of violence,
in violation of 18 U.S.C. § 924(c)(1)(A)(iii). He was sentenced to, inter alia, 156
months’ imprisonment, a 36-month upward departure from the advisory
Sentencing Guidelines range. He contends the district court erred by using his
prior arrest record to impose the upward departure because: the prior arrests


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-30796      Document: 00513951089      Page: 2    Date Filed: 04/13/2017


                                   No. 16-30796

were not sufficiently connected to the offense conduct to justify an upward
departure under Guideline § 5K2.21; and Guideline § 4A1.3(a)(3) prohibits
consideration of his arrest record without corroborating evidence.
      Although post-Booker, the Sentencing 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, 48–51 (2007). The usual standard of review for such claimed error does not
apply in this instance, however, because, as Fountain concedes, the claimed
error was not preserved in district court. Therefore, review is only for plain
error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
      Under that standard, Fountain must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
      The court mentioned Fountain’s prior arrests at sentencing, but also
emphasized, pursuant to Guideline § 5K2.21, Fountain’s uncharged or
dismissed conduct that was excluded under the terms of the plea agreement.
This uncharged conduct included seven additional counts and the presence of
minor children when Fountain discharged the firearm.               After recounting
Fountain’s criminal history and this uncharged conduct, the court imposed a
156-month sentence “[b]ased on the totality of the circumstances and the facts
of this case”.
      Therefore, the record shows:         although the court noted Fountain’s
criminal history and briefly mentioned his arrest record, the court based its
36-month upward departure on factors permissible under § 5K2.21, and on
facts which Fountain does not dispute, namely uncharged or dismissed conduct



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                                 No. 16-30796

and the serious risk of bodily harm to the victim’s minor children. Moreover,
the record also contained evidence corroborating some of Fountain’s previous
arrests, which may be considered notwithstanding Guideline § 4A1.3(a)(3). See
United States v. Williams, 620 F.3d 483, 493 n.9 (5th Cir. 2010).
      The plain-error rule is intended to address those errors that are so plain
“the trial judge and prosecutor were derelict in countenancing it, even absent
the defendant’s timely assistance in detecting it”. United States v. Frady, 456
U.S. 152, 163 (1982). Viewing the record as a whole, Fountain has failed to
show the requisite clear or obvious error. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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