     Case: 16-51190      Document: 00514045028         Page: 1    Date Filed: 06/22/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                    No. 16-51190                              FILED
                                  Summary Calendar                        June 22, 2017
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                              Clerk


              Plaintiff - Appellee

v.

PATRICK MINOR,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:15-CR-807-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       A jury convicted Patrick Minor of misdemeanor assault, and the
magistrate judge sentenced him to eight months of imprisonment and a year
of supervised release. He argues that the evidence was insufficient to support
his conviction, that the government discriminated against a black potential
juror by using a peremptory strike against him, and that the magistrate judge



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                    No. 16-51190
imposed an unreasonable sentence. Because the jury was entitled to credit the
testimony of the complaining witness, because the struck black juror gave
materially different answers during voir dire than the white jurors who were
not struck, and because Minor has failed to overcome the presumption that a
sentence within the Guidelines range is reasonable, we affirm.
                                           I.
         This case is in federal court because the assault took place on an air force
base. See 18 U.S.C. § 113(a)(4). With the parties’ consent, a magistrate judge
presided over the misdemeanor trial. During voir dire, the judge inquired as
to which prospective jurors had a prior personal interest in a criminal case. A
number of jurors responded, including Ernest Woods, who acknowledged that
his nephew was serving a term of imprisonment, and that he felt the “whole
process” had not treated his nephew fairly. Woods explained his belief that the
prosecution “made an example of” his nephew, who had not received adequate
representation.      Woods acknowledged that he had some “strong feelings”
towards his nephew’s case, but he believed he could be impartial in this case
by focusing on the evidence as presented under the applicable law.
         The government exercised a preemptory strike against Woods, which
Minor challenged on the basis that Woods had been the only black person on
the panel of prospective jurors. Minor argued that the strike was based on
race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986). In response, the
government argued that it had a race-neutral reason for striking Woods from
the jury: he would likely not have been impartial on account of his nephew’s
experience with the criminal justice system. The judge upheld the preemptory
strike
         The government’s evidence to convict Minor included the testimony of
John Toney. Toney testified that he worked with Minor at a car wash on a
military base in Texas. At the time of the incident, Toney was supervising the
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                                No. 16-51190
car wash employees, including Minor and Minor’s brother, while the business
owner was away. After Minor’s brother arrived late to work, was cursing, and
was “a little insubordinate,” Toney told him that he must calm down or leave
work for the day. Toney testified that Minor’s brother did not stop and that he
(Toney) tried to send him home. When Minor’s brother refused, Toney called
the owner of the car wash. Minor was “not happy” about the instruction and,
according to Toney, yelled and threatened to “whoop” him. Toney said that he
walked away, and Minor hit him from behind with a fist. Toney fell to the
ground, covered himself, yet Minor continued to hit him “several, four, five”
times in the head and face. The attack split Toney’s lip, bruised and hurt his
head, and left him bloody. Toney testified that he never hit Minor nor used
any physical force against him. On cross examination, Toney confirmed that
his initial written statement asserted that Minor “came straight at [him] and
hit [him] with his right hand.” Toney denied that this portion of his written
statement conflicted with his testimony that initially the attack came from
behind.
      Law enforcement arrived shortly after the incident, and, according to
police testimony, Minor admitted to hitting Toney. According to the testimony
of the owner of the car wash, Toney called him once to request that Minor be
sent home for the day. The owner testified that Minor said that he was
defending himself against Toney. Minor did not testify in his own defense and
rested without moving for a judgment of acquittal. The jury found Minor guilty
as charged.
      At sentencing, Minor, through counsel, sought either one day of
imprisonment or one year of probation, while the government asked for 6 to 8
months of imprisonment. The judge noted that Minor had never expressed
remorse, but rather had decided to remain silent. Minor’s counsel objected and
argued that at sentencing the judge could not consider Minor’s exercise of his
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                                       No. 16-51190
right to remain silent at trial as an indication that he lacked remorse. After a
short back-and-forth between counsel and the judge, the judge told defense
counsel that “the more you say, the higher his sentence is going.” Counsel
stopped arguing. After hearing more argument from the government, the
judge stated that “[i]t was obvious to me from the very beginning that what
happened in this case is that Mr. Minor came up from behind and punched
[Toney] in the face.” He discussed the nature and circumstances of the offense,
noted Minor’s “terrible” criminal record, stated that “he’s facing 4 to 12
months” (as discussed later, the actual Guideline range was 4 to 10), and
imposed a custodial sentence of eight months, to be followed by one year of
supervised release. After the oral pronouncement, Minor’s counsel asked to
address the judge, who denied him any further opportunity to comment. Minor
then asked, “Your Honor, can I say anything at all—at all?” to which the judge
replied, “I gave you a chance to say something, and you stood there and you
said nothing.” 1 Minor began speaking, but the judge abruptly concluded the
hearing.
       Minor timely appealed to the district court.                18 U.S.C. § 3402.        He
challenged the procedural and substantive reasonableness of the sentence, but
he did not challenge the conviction. 2 The government countered that the
within-guidelines sentence was reasonable. After Minor was already released




       1  The transcript does not include the judge giving Minor an opportunity to allocute.
Apparently, however, the beginning of the hearing was not transcribed. As quoted above, the
judge later referred to giving Minor an opportunity to speak, and Minor does not raise a claim
that he was denied allocution.
        2 Even though this court has not ruled on the issue, under these circumstances the

Eleventh Circuit has held that a defendant’s failure to appeal an issue to the district court
forfeits the issue for further review. See United States v. Pilati, 627 F.3d 1360, 1363–64 (11th
Cir. 2010). Regardless, the court need not decide whether Minor forfeited his first two
challenges because they lack merit, as explained in the discussion that follows.
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                                  No. 16-51190
from custody, the district court affirmed the sentence as neither plainly
erroneous nor an abuse of discretion. Minor then appealed to this court.
                                       II.
                                       A.
      Minor first argues that the evidence was not sufficient for his assault
conviction.   He contends that there was “no evidence” that he was the
“aggressor [or] the perpetrator” and that law enforcement failed to “validate”
Toney’s account with other witnesses. Therefore, he urges, any conviction was
based on a speculative construction of the evidence.
      Minor does not dispute Toney’s testimony that Minor “hit him.” Instead,
Minor’s arguments focus on the credibility of Toney’s account, including its lack
of corroboration, especially regarding whether Minor acted in self-defense.
Given that credibility determinations must be viewed in the light most
favorable to the jury’s finding, Minor’s arguments are unavailing. See United
States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999). Minor has not shown why
the jury was not entitled to accept Toney’s account that Minor struck him
without any physical provocation.      Because, according to Toney’s account,
Minor had no reason to use self-defense, his argument that he was provoked is
irrelevant. In light of the deference that must be afforded to this interpretation
of Toney’s testimony, a rational trier of fact could have found Minor guilty of
assault. See United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014)
(en banc).
                                       B.
      Minor next argues that the judge clearly erred in rejecting his Batson
challenge. As he did at voir dire, Minor emphasizes that Woods was the sole
black prospective juror out of the thirty-two individuals on the panel. Noting
that Woods expressed that he could be fair and impartial, Minor argues that
the government improperly “reli[ed] on reasons that both apply equally to
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                                  No. 16-51190
white jurors who were not struck and involve concerns not pursued during voir
dire.”
         Batson established a three-step process for examining an objection
challenging the selection of jurors on the basis of race. A defendant must first
make a prima facie showing that the prosecutor has exercised a peremptory
challenge on the basis of race. Hernandez v. New York, 500 U.S. 352, 358
(1991) (citing Batson, 476 U.S. at 96–97). When that showing is made, “the
burden shifts to the prosecutor to articulate a race-neutral explanation for” the
challenged peremptory strike. Hernandez, 500 U.S. at 358–59 (citing Batson,
476 U.S. at 97–98).      The explanation “need not be persuasive, nor even
plausible, but only race-neutral and honest.” United States v. Williams, 264
F.3d 561, 571 (5th Cir. 2001). At the third step, “the trial court must determine
whether the defendant has carried his burden of proving purposeful
discrimination.” Hernandez, 500 U.S. at 359. This finding rests primarily on
the district court’s evaluation of the prosecutor’s demeanor and credibility. Id.
at 364–65. Relevant evidence includes a comparative analysis of the jurors—
that is, “side-by-side comparisons of some black venire panelists who were
struck and white panelists allowed to serve.” Miller-El v. Dretke, 545 U.S. 231,
241 (2008) (Miller-El II). If the government’s explanation “for striking a black
panelist applies just as well to an otherwise-similar nonblack who is permitted
to serve, that is evidence tending to prove purposeful discrimination to be
considered at Batson’s third step.” Id.
         Although comparative jury analysis can be a powerful tool for deciding
Baton challenges, the facts do not support Minor’s assertion that the
government disparately applied its strike reasoning to Woods as compared to
white juror candidates. Upon the judge’s inquiry about the prospective jurors’
prior personal interest in a criminal case, seven individuals, including Woods,
responded in the affirmative. Out of those seven, only one, Leticia Fragoso,
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                                 No. 16-51190
was selected for the jury. Unlike Woods, who stated his “strong” negative
feelings about the criminal justice system’s disposition of his nephew’s case,
Fragoso expressed no such sentiment about her cousin’s criminal case, which
she did not know much about.
      The side-by-side comparison of Woods and Fragoso therefore reveals a
stark difference: only Woods expressed any prior personal dissatisfaction with
the criminal justice system.    Contrary to what Minor argues, there is no
indication that the government’s explanation applied inconsistently to the
prospective jurors depending on their race. Minor has not shown that the judge
committed clear error in rejecting his Batson challenge. See United States v.
Williamson, 533 F.3d 269, 274 (5th Cir. 2008); Williams, 264 F.3d at 571.
                                      C.
      Minor argues that the magistrate judge reversibly erred by imposing an
unreasonable sentence of eight months of imprisonment, followed by one year
of supervised release. Even though Minor has already been released from
prison, the chance that the district court might impose a shorter term of
supervised release upon remand keeps this case from being moot. See United
States v. Hernandez, 170 F. App’x 914, 915 (5th Cir. 2006) (citing Johnson v.
Pettiford, 442 F.3d 917 (5th Cir. 2006) (per curiam)).
      This court ordinarily reviews the reasonableness of a sentence under an
abuse of discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007).
This court “must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.” Id. As for substantive
reasonableness, within-guidelines sentences are presumed to be reasonable.
United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). To
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                                  No. 16-51190
rebut the presumption of reasonableness, a defendant must show that “the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      We first note an irregularity Minor mentions in his brief but does not
press as a basis for vacating sentence. At the sentencing hearing, the judge
stated, “He’s got a terrible record in the past. It doesn’t account for anything
in the Guidelines, but he’s facing 4 to 12 months. He’s not getting a day in jail,
and he’s certainly not getting probation.” Arguably, the judge misstated the
applicable Guidelines range of four to ten months as four to twelve months.
The district court addressed this issue in its opinion denying Minor’s appeal
from the magistrate judge’s sentence.       Minor, however, does not urge the
statement as a basis for reversal by citing authority or making arguments.
      To the extent that Minor has not waived this issue, the judge’s statement
is at most ambiguous evidence that he misunderstood the Guidelines range.
Particularly given that the statutory maximum sentence was twelve months
of imprisonment, 18 U.S.C. § 113(a)(4), it is unclear whether the judge was
referencing the upper end of the guidelines range or the statutory range.
Looking to the written record, two documents correctly state the Guidelines
range. The statement of reasons adopted by the judge indicates four to ten
months as the correct Guidelines range. This mirrors the probation officer’s
calculation in the Presentence Report that the judge had before him at
sentencing.     Although the general rule of sentencing is that oral
pronouncements by the judge control over the written judgment, United States
v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003), we have rejected applying
the “oral-trumps-written rule” beyond the written judgment to the statement
of reasons. United States v. Pillault, 783 F.3d 282, 292 n.2 (5th Cir. 2015). In
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the face of the statement of reasons and the calculation of the probation officer
the judge had at the sentencing hearing, Minor has not shown from the judge’s
ambiguous statement that he misunderstood the Guidelines range.              See
Murphy v. St. Paul Fire & Marine Ins. Co., 314 F.2d 30, 31 (5th Cir. 1963) (“It
is elementary that the burden is on the appellants to show error.”).
      Challenging the substantive reasonableness of the sentence, Minor
states that “in view of the fact that no major injuries resulted from the
altercation as well as Appellant’s lack of non-compliance issues while on bond
the court abused its discretion in sentencing to 8 months of incarceration
followed by a year of supervised release.” He contends that the “sentence was
greater than necessary to provide just punishment for the offense, and was
greater than necessary to provide adequate deterrence for Appellant or to
protect the public from him.”
      Minor has not shown that the magistrate judge abused his discretion.
The judge emphasized legally relevant factors: he noted that “Mr. Minor, an
exceedingly much larger man than Mr. Tony, without any excuse . . . snuck up
behind Mr. Tony, punched him in the face, got him to the ground, hit him over
and over again.” He also observed that Minor had “a terrible record in the
past.” These truths were part of “the nature and circumstances of the offense
and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a). It
was within the judge’s discretion to find that the facts he stressed demanded
the sentence imposed in spite of the facts Minor prefers to highlight.
      Although he does not urge it as a basis for vacating sentence, Minor calls
our attention to the statement by the magistrate judge discouraging his
counsel from raising objections. When Minor’s counsel continued to press an
objection concerning whether Minor’s silence at trial could be considered in
deciding whether he had accepted responsibility, the judge warned counsel
“the more you say, the higher his sentence is going.” Although not pressed by
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Minor as a reason for vacating our sentence, we do note that this encounter is
not consistent with the solemnity of a sentencing hearing and may chill the
right a defendant and counsel have to be heard at sentencing.      See FED. R.
CRIM. P. 32(i)(4).
                                    ***
      We AFFIRM.




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