     Case: 16-11438      Document: 00514120604         Page: 1    Date Filed: 08/17/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-11438                                FILED
                                  Summary Calendar                        August 17, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BRYAN CHENAULT,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-88-1


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
       Bryan Chenault pleaded guilty to one count of being a felon in possession
of a firearm and was sentenced above the advisory guidelines range to 100
months of imprisonment and a three-year term of supervised release. On
appeal, he argues that his sentence was procedurally and substantively
unreasonable.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11438     Document: 00514120604     Page: 2   Date Filed: 08/17/2017


                                  No. 16-11438

      As Chenault did not raise these arguments in the district court, plain
error review applies. See United States v. Mondragon-Santiago, 564 F.3d 357,
361 (5th Cir. 2009). To show plain error, Chenault must show a forfeited error
that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      Chenault has not demonstrated a clear or obvious procedural error.
With respect to his claim that the district court’s explanation of the sentence
was inadequate, the sentencing judge should “carefully articulate the reasons”
for finding a non-guidelines sentence to be appropriate.        United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005). Here, the district court listened to
the arguments and statements made by defense counsel and Chenault at the
sentencing proceeding, adopted the presentence report, considered the 18
U.S.C. § 3553(a) factors and the Guidelines, and stated reasons in support of
the non-guidelines sentence.
      With respect to the district court’s reliance on the information in the
presentence report regarding Chenault’s criminal history, the district court
“may consider any information which bears sufficient indicia of reliability to
support its probable accuracy.” United States v. Harris, 702 F.3d 226, 230 (5th
Cir. 2012) (internal quotation marks and citation omitted).         Because the
presentence report has “sufficient indicia of reliability to be considered as
evidence . . . in making factual determinations,” the district court can adopt
facts contained therein “without further inquiry if those facts have an adequate
evidentiary basis with sufficient indicia of reliability and the defendant does
not present rebuttal evidence or otherwise demonstrate that the information
in the [presentence report] is unreliable.” Id. (internal quotation marks and



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                                  No. 16-11438

citations omitted). Here, the disputed portions of the presentence report recite
the facts of Chenault’s prior offenses in detail. Despite being notified before
sentencing of the district court’s tentative intent to sentence him above the
advisory guidelines range, and having the opportunity to present evidence at
sentencing, Chenault provided no evidence at all to rebut the facts as stated in
the presentence report. Nor does he provide any meaningful explanation in
his appellate brief as to why the facts as stated in the presentence report were
unreliable.
      Finally, Chenault has not shown that his sentence was plainly
substantively unreasonable. In determining substantive reasonableness, we
consider “the totality of the circumstances, including the extent of any variance
from the Guidelines range.” United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008) (internal quotation marks and citation omitted). Here, the district
court made an individualized assessment as to Chenault and was free to
conclude that in this case, the advisory guidelines range gave insufficient
weight to some of the sentencing factors. See United States v. Williams, 517
F.3d 801, 809 (5th Cir. 2008). The district court’s reasons for imposing a
variance adequately reflected the sentencing factors in § 3553(a). And while
Chenault’s 100-month sentence is 29 months longer than the highest sentence
that could have been imposed under his advisory guidelines range, that
variance is nevertheless within the range that we have held to be reasonable.
See Brantley, 537 F.3d at 348-50 (upholding a variance of more than 250% from
the advisory guidelines range).
      AFFIRMED.




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