Case: 19-30427      Document: 00515520312         Page: 1     Date Filed: 08/07/2020




            United States Court of Appeals
                 for the Fifth Circuit                         United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                                                 August 7, 2020
                                 No. 19-30427                    Lyle W. Cayce
                                                                      Clerk

 United States of America,

                                                            Plaintiff—Appellee,

                                     versus

 John Homer Legros, Jr.,

                                                         Defendant—Appellant.


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                          USDC No. 2:18-CR-223-1


 Before Davis, Graves, and Duncan, Circuit Judges.
 Per Curiam:*
        John Homer Legros, Jr., challenges the inclusion of an erroneous
 converted drug weight in his presentence report, as well as the district court’s
 failure to make a finding on his objection to a sentencing enhancement for
 possessing a firearm. We affirm.




        *
          Pursuant to 5TH CIRCUIT. Rule. 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 opinion should not be published and is not precedent except under the limited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. 19-30427


                                       I.
        Legros pleaded guilty to conspiracy to distribute and to possess with
 intent to distribute oxycodone in violation of 21 U.S.C. § 846. His probation
 officer prepared a presentence report (“PSR”) that cast Legros responsible
 for 395 oxycodone pills. The officer determined the pills’ converted drug
 weight was 2,646.5 kilograms, correlating to a base offense level of 30. The
 PSR recommended a two-level increase under U.S.S.G. § 2D1.1(b)(1)
 because Legros had a firearm, and another two-level increase under U.S.S.G.
 § 3B1.1(c) based on his supervisory role in the conspiracy. The PSR
 calculated an adjusted offense level of 34. Because his offense concerned
 controlled substances, however, and because Legros had prior drug-
 trafficking convictions, the PSR found Legros qualified as a “career
 offender” under U.S.S.G. § 4B1.1(b)(3). His offense level under the career-
 offender guideline was 32, but because that offense level was lower that his
 otherwise applicable level under § 2D1.1, the PSR stated the higher level of
 34 applied. After a three-level reduction under U.S.S.G. § 3E1.1 for
 acceptance of responsibility, his total offense level was 31. With a total
 offense level of 31 and a criminal history category of VI, the resulting
 sentencing range was 188–235 months.
        Both the Government and Legros objected to the PSR. The
 Government challenged the calculation of the converted drug weight,
 explaining that the correct figure was 661.625 kilograms, correlating to an
 offense level of 27. Because that offense level was lower than the one supplied
 by the career-offender guideline, the Government argued that career-
 offender status should determine Legros’s sentencing range, instead of drug
 quantity. The Government argued, however, that his range remained 188–
 235 months even under the career-offender guideline. For his part, Legros
 argued that the converted weight was between 60 and 80 kilograms,
 correlating to a base offense level of only 20. He also challenged application



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                                  No. 19-30427


 of the firearm enhancement, arguing that the weapon was recovered from his
 home and that there was no evidence drug-trafficking activity occurred there.
        In an addendum to the PSR, the probation officer defended his initial
 calculations on converted drug weight and his application of the firearm
 enhancement. In response to both parties’ objections, however, he noted that
 if the court were to determine the career-offender provisions controlled,
 Legros’s guideline range would be 151–188 months.
        At sentencing, the Government conceded error in the drug-quantity
 conversion but argued this was moot because the career-offender provision
 should govern, making Legros’s range 151–188 months. Legros disagreed
 with the Government about the impact of the drug-quantity error, but
 ultimately agreed that the proper range under the career-offender guideline
 was 151–188 months, raising no objection to his career-offender status. The
 district court found the Probation Office’s “career criminal calculation” was
 “correct” and overruled the objections to the PSR. The court sentenced
 Legros to 144 months imprisonment, just below the advisory range. Legros
 offered no objection to his sentence, nor did he request that his PSR be
 amended to reflect any corrected drug conversion weights or to remove the
 firearm enhancement.
        In its statement of reasons, the district court wrote it had “adopted
 the presentence report with the following changes,” namely that “[t]he
 government and the defense agreed to hold the defendant accountable for a
 drug weight that was less than originally determined, [and] therefore [the]
 career offender guideline was used for sentencing purposes.” Legros filed no
 objection to the district court’s statement of reasons.
        Legros now appeals, challenging inclusion of the erroneous converted
 drug weight in his PSR, as well as the district court’s failure to make any




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                                       No. 19-30427


 finding on his objection to the firearm enhancement. The parties agree that
 neither mistake had any effect on Legros’s sentence.
                                            II.
         The Government argues we lack jurisdiction to consider an appeal
 complaining solely about an erroneous PSR. It concedes that “the order
 sentencing the defendant” is a “final decision” for purposes of appellate
 jurisdiction under 28 U.S.C. § 1291. See United States v. Newman, 556 F.2d
 1218, 1219 (5th Cir. 1977) (citations omitted). It also recognizes that a
 criminal defendant may appeal his sentence if it “was imposed as a result of
 an incorrect application of the sentencing guidelines.” 18 U.S.C.
 § 3742(a)(2). Nonetheless, the Government argues we lack appellate
 jurisdiction here because Legros does not actually challenge his sentence. It
 relies primarily on cases finding no jurisdiction to appeal judicial
 recommendations to the Bureau of Prisons.1
         The Government’s argument fails to cope with our precedent. In
 United States v. Ramirez-Gonzalez, the defendant appealed the district
 court’s refusal to correct his PSR to reflect the court’s determination at
 sentencing that he did not commit an aggravated felony. 840 F.3d 240, 242
 (5th Cir. 2016). Like Legros, Ramirez-Gonzalez argued that the district court
 erred by failing to rule on disputed portions of the PSR, id. at 246, and by
 failing to correct the PSR, id. at 247. After concluding Ramirez-Gonzalez’s
 intervening deportation did not moot his appeal, id. at 244–45, we considered
 “the merits” of his arguments under Federal Rules of Criminal Procedure 32



         1
           See, e.g., United States v. De La Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000)
 (district court’s “recommendation” regarding garnishment of prisoner’s earnings
 “was not binding upon the BOP, and, accordingly it is not an order from which [the
 prisoner] can appeal” (citing United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997))).




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 and 36. Id. at 245. Despite relying on Ramirez-Gonzalez in support of its
 merits argument, the Government ignores this fact.
        Because the Government’s position fails to consider Ramirez-
 Gonzalez, we proceed to the merits.
                                        B.
        Legros contends the district court erred by failing to correct the
 erroneous drug-quantity calculation in his PSR and by failing to rule explicitly
 on his objections to the firearm enhancement. Reviewing for plain error, we
 hold the district court did not err in either respect.
                                        1.
        The parties dispute the standard of review. We review for plain error
 unless Legros raised his objection with sufficient precision to give the district
 court “the opportunity to address the gravamen of the argument presented
 on appeal.” United States v. Narez-Garcia, 819 F.3d 146, 149 (5th Cir. 2016)
 (cleaned up).
        We conclude he did not. Legros did challenge the PSR’s drug-quantity
 calculation and the firearm enhancement. But he did so only before
 sentencing, as challenges to the basis for his sentence. On appeal, Legros does
 not attack the sentence, which he concedes is correct. Instead, he attacks only
 the district court’s failure to correct the PSR. But he never asked the district
 court to make any such correction. He made no objection after the district
 court suggested orally at sentencing that it would not rely on the contested
 findings. And he failed to object to the court’s written statement of reasons,
 which applied the career-offender enhancement and ignored the two errors
 Legros now raises. Legros did not challenge this determination or request




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                                       No. 19-30427


 alterations to the PSR’s now-moot drug-quantity calculation or firearm
 recommendation.2
         Legros’s arguments otherwise fail. First, as to the drug quantity
 determination, LeGros argues our review should be de novo because both he
 and the Government objected below to the PSR’s calculation. But, as
 discussed above, an objection to the PSR’s calculation in support of a
 sentence is not tantamount to an objection to the PSR qua the PSR. To
 preserve the errors he raises now, Legros should have explicitly moved the
 court to correct the PSR. He failed to do so.
         Legros also relies on United States v. Mackay, in which we reviewed
 the denial of a Rule 36 motion de novo “because the facts [were] undisputed,
 leaving only questions of law.” 757 F.3d 195, 197 (5th Cir. 2014) (citation
 omitted). But Mackay involved a direct appeal from the denial of a Rule 36
 motion. Id. at 196–97. That motion gave the district court adequate
 opportunity to review the defendant’s claims. Here, LeGros failed to make
 any such motion.
         We therefore review for plain error only. To succeed, Legros must
 demonstrate “(1) an error, (2) that is clear or obvious, and (3) that affects the
 defendant’s substantial rights.” United States v. Brandon, 965 F.3d 427, 430
 (5th Cir. 2020) (citation omitted). “If those conditions are met,” we will
 reverse “if the error seriously affects the fairness, integrity, or public
 reputation of judicial proceedings.” Id. at 430–31 (citations omitted; cleaned




         2
            We have consistently applied plain-error review to putative violations of Rules
 32, see, e.g., United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc), and 36,
 see, e.g., United States v. Hernandez, 719 F. App’x 388, 389 (5th Cir. 2018) (citation
 omitted); United States v. Padilla-Avilez, 318 F. App’x 276 (5th Cir. 2009) (citations
 omitted).




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 up). Here, Legros fails to demonstrate any error at all, let alone a “clear or
 obvious” error.
                                             2.
         Legros first challenges the district court’s failure to correct the PSR’s
 drug quantity determination. Although he does not analyze either rule in
 detail,3 he relies cursorily on Federal Rules of Criminal Procedure 32(i)(3)(B)
 and 36. Neither rule affords him any relief.
         Rule 32(i)(3)(B) relevantly provides that
         [a]t sentencing, the court . . . must—for any disputed portion
         of the presentence report . . . —rule on the dispute or
         determine that a ruling is unnecessary either because the
         matter will not affect sentencing, or because the court will not
         consider the matter in sentencing.
 We have “rejected the proposition that a court must make a catechismic
 regurgitation of each fact determined; instead, [we have] allowed the district
 court to make implicit findings by adopting the PSR.” Ramirez-Gonzalez, 840
 F.3d at 246 (quoting United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir.
 1994)) (internal quotation marks omitted); see also id. at 247 (“Rule
 32(i)(3)(B) does not, by its terms . . . require an explicit statement from the
 court. Indeed, we have suggested that an implicit rejection may suffice.”
 (alteration in original; citation omitted)).
         In Ramirez-Gonzalez, we confronted an argument similar to Legros’s.
 The district court held, “contrary to the PSR’s analysis,” that a certain
 conviction did not qualify as an aggravated felony. Id. It stated as much in


         3
            Legros spends the bulk of his briefing on this point arguing that the PO did, in
 fact, err in the calculation. And, although he argues review should be de novo, he argues
 at some length that the errors in his PSR affect his “substantial rights.” But neither
 argument establishes that the district court was under any obligation to correct the PSR.




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                                   No. 19-30427


 open court and in its statement of reasons. Moreover, the PSR listed an
 inaccurate total offense level—20, as opposed to 10—but the statement of
 reasons listed the correct offense level. Id. at 246–47. The defendant
 appealed, arguing that his erroneous PSR could affect “his ability to legally
 reenter the country in the future.” Id. at 245. We accepted that this may be
 true, id., but concluded that even so, the district court committed no
 reversible error by failing to correct the PSR, id. at 246–47.
        So too here. As in Ramirez-Gonzalez, “the district court could have
 done a more specific job of explaining its deviations from the PSR and the
 content of its rulings.” Id. at 246. But, as Legros concedes, the statement of
 reasons correctly states the basis for the district court’s ruling, such that “a
 ruling” on the drug quantity calculation “is unnecessary . . . because the
 matter will not affect sentencing.” Fed. R. Crim. P. 32(i)(3)(B). “In short,
 the determinations that [Legros] seeks are implicit from the court’s bench
 rulings and the Statement of Reasons, and that suffices for the purposes of
 Rule 32(i)(3)(B).” Ramirez-Gonzalez, 840 F.3d at 246–47.
        Rule 36 is similarly unhelpful to Legros. It provides that “the court
 may at any time correct a clerical error in a judgment, order, or other part of
 the record, or correct an error in the record arising from oversight or
 omission.” Rule 36 is a “limited tool[,] meant only to correct mindless and
 mechanistic mistakes.” Ramirez-Gonzalez, 840 F.3d at 247 (citation and
 internal quotation marks omitted). It applies only where “an issue was
 actually litigated and decided but was incorrectly recorded in or inadvertently
 omitted from the judgment.” Id. (citation omitted).
        Here, even on Legros’s own argument, the PSR’s errors are by no
 means “clerical.” As he acknowledges—and makes much hay of—“[t]he
 probation officer . . . stands by his calculations.” Wrong or not, the drug
 quantity calculation “was deliberately chosen by the probation officer who




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                                   No. 19-30427


 drafted [the PSR].” Id. at 247. Accordingly, it was not “the sort of mistake
 subject to correction under Rule 36.” Id. That the district court “declined to
 adopt portions of the PSR in the final judgment . . . does not render the
 unadopted content of the PSR a ‘clerical error.’” Id.
        In sum, the district court’s refusal to correct the PSR’s drug quantity
 calculations did not violate Rule 32(i)(3)(B) or Rule 36.
                                        3.
        Legros next argues the district court failed to resolve his objection to
 the firearm enhancement. Although in the course of this argument he does
 not specifically invoke Rule 32(i)(3)(B)—or any other legal authority—his
 argument appears to implicate Rule 32(i)(3)(B)’s requirement that the
 district court “rule on the dispute or determine that a ruling is unnecessary.”
        Here, again, by adopting the career-offender enhancement, the
 district court implicitly “determine[d] that” it was unnecessary to rule on
 the firearm enhancement. FED. R. CRIM. P. 32(i)(3)(B); accord Ramirez-
 Gonzalez, 840 F.3d at 247; United States v. Perez-Barocela, 594 F. App’x 224,
 231 (5th Cir. 2014) (rejecting defendant’s construction of Rule 32(i)(3)(B)
 “as requiring a court to state explicitly its denial of a motion or determination
 that a ruling is unnecessary” (citing United States v. Aggarwal, 17 F.3d 737,
 745 (5th Cir. 1994)); see also United States v. Hernandez, 457 F.3d 416, 424
 (5th Cir. 2006) (imposition of within-guidelines sentence implicitly denied
 request for downward departure).
        AFFIRMED




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