     Case: 16-11509      Document: 00514724665         Page: 1    Date Filed: 11/15/2018




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

                                                                                FILED
                                      No. 16-11509                      November 15, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

AVNIEL AWAN ANTHONY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-128-1


     ON REMAND FROM THE UNITED STATES SUPREME COURT
Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Avniel Awan Anthony appeals his 72-month,
above-guidelines, sentence for making a false statement in a passport
application. For the following reasons, we affirm.
                          I. Facts & Procedural History
       Anthony pled guilty to making a false statement in a passport
application in violation of 18 U.S.C. § 1542. The presentence report (PSR)


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11509    Document: 00514724665       Page: 2    Date Filed: 11/15/2018


                                   No. 16-11509

calculated an advisory sentencing range of 15 to 21 months, based on an offense
level of 10 and a criminal history category of IV. Anthony’s offense level was
determined by applying a two-level enhancement, under U.S.S.G. § 3C1.1, for
obstruction   of   justice   and    another   two-level     enhancement,     under
U.S.S.G. § 3C1.2, for reckless endangerment during flight from a police officer.
These Chapter Three enhancements were predicated on Anthony’s actions
while in police custody at a Mexican airport awaiting extradition to the United
States on the instant charge. There, Anthony was handcuffed and detained in
a room at the Cancun airport. Officers left him in the room alone and he
removed his handcuffs and climbed through the ceiling tiles into the airport’s
ventilation system. After forty-five minutes of climbing through the ducts in
the ceiling, Anthony fell through the ceiling onto a baggage claim turnstile,
where he was re-apprehended.
      The PSR recommended an enhancement under § 3C1.1 because Anthony
“was already in the custody of law enforcement” and his behavior was
“indicative of an attempt to escape law enforcement custody.” It also
recommended an enhancement under § 3C1.2 because airports “are highly
populated areas” and people in the airport “could have been harmed if
[Anthony] had fallen through the ceiling onto them.” Anthony filed objections
to the PSR, but did not object specifically to the Chapter Three enhancements.
      At sentencing, the district court sustained Anthony’s oral objection to the
calculation of his criminal history score on grounds unrelated to this appeal
and reduced his criminal history category from IV to III. With a revised
criminal history category, his final guidelines range was 10 to 16 months.
Subject to those changes, the district court adopted the findings of the PSR.
After hearing argument from Anthony and his counsel, the district court
determined that a guidelines sentence was inadequate because Anthony “has



                                        2
    Case: 16-11509     Document: 00514724665      Page: 3    Date Filed: 11/15/2018


                                  No. 16-11509

a long history of violence,” including convictions for attempted murder, sexual
assault, and aggravated robbery, some of which received no criminal history
points. Taking into account the 18 U.S.C. § 3553(a) factors, the district court
sentenced Anthony to 72 months of imprisonment, followed by two years of
supervised release. Anthony filed this appeal.
                                 II. Discussion
      Anthony makes two primary arguments on appeal. He first contends
that the district court committed reversible plain error in calculating his
guidelines range by applying separate enhancements for obstruction of justice
and reckless endangerment based solely on the same conduct—namely, his
attempt to escape police custody by crawling into, and subsequently falling
from, the airport ventilation ducts. See U.S.S.G. §§ 3C1.1; 3C1.2. Second, he
asserts error because the district court’s Statement of Reasons (SOR) orders
his sentence to run consecutively to his sentences on unrelated state charges,
whereas the court’s oral pronouncement of the sentence did not mention
consecutive sentences. We address each issue in turn.
Chapter 3 Enhancements
      As Anthony concedes, he did not object in the district court to the § 3C1.1
and § 3C1.2 enhancements so appellate review of this issue is for plain error.
See United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). To prevail on
plain error review, Anthony must identify (1) a forfeited error (2) that is clear
or obvious, rather than subject to reasonable dispute, and (3) that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he satisfies the first three requirements, this court may, in its discretion,
remedy the error if the error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. This court has recently acknowledged
that “[w]ith regard to the fourth prong of plain-error review, the Supreme



                                         3
      Case: 16-11509   Document: 00514724665     Page: 4   Date Filed: 11/15/2018


                                  No. 16-11509

Court reasoned in Rosales-Mireles v. United States that proof that a district
court relied on a miscalculated guidelines range ‘will in the ordinary case . . .
seriously affect the fairness, integrity, or public reputation of judicial
proceedings, and thus will warrant relief’ under the fourth prong of plain-error
review.” United States v. Fuentes-Canales, 902 F.3d 468, 476 (5th Cir. 2018)
(quoting Rosales-Mireles v. United States, 138 S. Ct. 1897, 1903 (2018)).
Nevertheless, “the Court recognized that ‘[t]here may be instances where
countervailing factors satisfy the court of appeals that the fairness, integrity,
and public reputation of the proceedings will be preserved absent correction.’”
Id.
       Section 3C1.1 provides for a two-level enhancement if “the defendant
willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction.” Conduct covered under § 3C1.1
includes “escaping or attempting to escape from custody before trial or
sentencing.” § 3C1.1, cmt. n.4(E). Section 3C1.2 provides for a separate two-
level enhancement if “the defendant recklessly created a substantial risk of
death or serious bodily injury to another person in the course of fleeing from a
law enforcement officer.”
       “[T]he Guidelines do not prohibit double counting except when the
particular Guideline at issue expressly does so.” United States v. Luna, 165
F.3d 316, 323 (5th Cir. 1999). To that end, the commentary to § 3C1.2 instructs
that an enhancement may not be applied if “another adjustment in Chapter
Three, results in an equivalent or greater increase in offense level solely on the
basis of the same conduct.” § 3C1.2, cmt. n.1. In determining whether multiple
enhancements are based solely on the same conduct, this court has followed
the lead of other circuits by “focus[ing] on the temporal and spatial



                                        4
     Case: 16-11509       Document: 00514724665          Page: 5     Date Filed: 11/15/2018


                                       No. 16-11509

distinctiveness or separateness of the acts” to discern “whether the defendant’s
conduct involves more than one culpable act.” United States v. Gillyard, 261
F.3d 506, 511 (5th Cir. 2001).
       Anthony asserts that, in applying enhancements under both § 3C1.1 and
§ 3C1.2, his entry into and sudden exit from the airport ceiling were
erroneously treated as distinct acts.             He contends that his entering into,
crawling around, and falling from the airport ventilation system comprised a
single act of “trying to escape from the room in which he was detained.” 1 As a
result, Anthony argues, he should have only received one of the 2-level Chapter
3 enhancements which would have yielded a guidelines range of 6 to 12 months
rather than a range of 10 to 16 months. We disagree.
       The relevant commentary to § 3C1.2 provides that an enhancement may
not be applied if the defendant received an equal or greater offense level
increase under § 3C1.1 “solely on the basis of the same conduct.” § 3C1.2, cmt.
n.1. In Gillyard, this court held that the defendant’s conduct during his high-
speed flight from police supported dual enhancements for reckless
endangerment and assaulting a law enforcement officer where, “at different
times and in different places” during the chase, the defendant nearly swerved
into a group of construction workers and almost collided with a pursuing police
car. 261 F.3d at 507–08, 511. In that case we observed that “courts that have
addressed the issue of double enhancements for different aspects of a criminal
transaction have focused on the temporal and spatial distinctiveness or


       1 Anthony also argues that since he was already in custody at the time of the relevant
conduct, the double-enhancement error is “especially plain” because § 3C1.2 does not apply
to conduct occurring after a defendant’s capture. We disagree. The guideline only requires
that a substantial risk of bodily injury to another be created “in the course of fleeing from a
law enforcement officer.” § 3C1.2. The fact that § 3C1.2 ordinarily applies to conduct
involving “avoiding or fleeing from arrest” has no bearing on whether § 3C1.2 can be applied
to post-arrest conduct.



                                              5
       Case: 16-11509   Document: 00514724665    Page: 6   Date Filed: 11/15/2018


                                  No. 16-11509

separateness of the acts in determining whether the defendant’s conduct
involves more than one culpable act.” Id. at 511.
        Similarly, in United States v. Bocanegra-Rodriguez, 336 F. App’x 430,
430–31 (5th Cir. 2009), this court affirmed separate enhancements for reckless
endangerment and recklessly creating a risk of serious bodily injury to another
during the commission of an alien smuggling offense. Both enhancements
were based on the defendant’s attempt to flee from police in a van overcrowded
with illegal aliens because we determined that “the risk caused by the
overcrowding was distinct from the risk posed by [the defendant’s] reckless
driving during flight.” Id. at 431. We further reasoned that “[the defendant’s]
reckless driving created a risk of danger to people besides the van passengers.”
Id.
        In United States v. Cabral-Castillo, 35 F.3d 182, 188–89 & n.8 (5th Cir.
1994), however, we held that the defendant’s act of driving his car at high speed
toward a Border Patrol agent did not support enhancements for both reckless
endangerment and use of a deadly weapon (i.e., the car) because the
enhancements were “clearly” based on the same conduct. There, this court
noted that the events that transpired took place “[w]ithin a short time.” Id. at
184.
        Our reasoning in Gillyard and similar cases suggests that Anthony has
failed to show that the district court erred in applying both Chapter 3
enhancements given the “temporal and spatial distinctiveness or separateness
of the acts” upon which the enhancements were applied. 261 F.3d at 511. In
applying the 2-level enhancement under § 3C1.1 (escape), the PSR provided
that “[w]hile alone in the room, [Anthony] removed his handcuffs and fled
through the ceiling tiles of the room into the ventilation system of the airport
[where he crawled for 45 minutes] in an attempt to evade law enforcement.”



                                        6
    Case: 16-11509    Document: 00514724665     Page: 7   Date Filed: 11/15/2018


                                 No. 16-11509

Then, in applying the 2-level enhancement under § 3C1.2 (reckless
endangerment), the PSR noted that “[d]uring defendant’s escape from law
enforcement, he crawled through the ceiling and into the air ducts of the
[airport and] fell through the ceiling and onto the baggage claim turnstile.” The
PSR continued that “[a]irports are highly populated areas, and the defendant
created a substantial risk of seriously bodily injury to those civilians and law
enforcement officers within the airport who could have been harmed if the
defendant had fallen through the ceiling onto them.”
      Although both paragraphs included mention of Anthony crawling
through the airport ventilation system, the first paragraph supporting the
§ 3C1.1 enhancement focused on his initial act of escape by removing the
handcuffs, climbing into the ceiling of the holding room, and crawling through
the ducts. The second paragraph supporting the § 3C1.2 enhancement picked
up forty-five minutes after his initial escape, when he fell through the ceiling
onto the baggage claim turnstile, observing the dangerous nature of this event
given that he could have harmed anyone standing nearby at the time. It
therefore appears that the PSR relied on the “temporal and spatial
distinctiveness or separateness of the acts” in recommending the two separate
Chapter 3 enhancements. Gillyard, 261 F.3d at 511 (noting that “[t]hreats to
police and to bystanders that occur at different times and in different places
have been viewed as two separate acts worthy of two separate enhancements
under the guidelines”).
      After sustaining Anthony’s oral objections to the PSR on unrelated
grounds and reducing his criminal history category from IV to III, the district
court adopted the factual predicate contained in the remainder of the PSR, as
it was within its discretion to do. On this record, we conclude that Anthony has
failed to show that the district court plainly erred in applying both Chapter 3



                                       7
    Case: 16-11509      Document: 00514724665     Page: 8   Date Filed: 11/15/2018


                                  No. 16-11509

enhancements in calculating his sentence.         See Puckett, 556 U.S. at 135.
Moreover, given this circuit’s range of authority in these types of cases, even if
we were to conclude that Anthony had shown error here, we could not say that
the error would be clear or obvious. Id.; Bocanegra-Rodriguez, 336 F. App’x at
430–31; Gillyard, 261 F.3d at 511; Cabral-Castillo, 35 F.3d at 188–89 & n.8.
In light of this concusion, we need not reach prongs three and four of the plain
error analysis. See Puckett, 556 U.S. at 135.
      Anthony    also    takes   issue   with   his   above-guidelines   sentence,
emphasizing that it is “450% of the maximum of the Guideline range the
district court believed applicable.” He argues that “[t]he public reputation of
judicial proceedings are not served by allowing a sentence so far in excess of
the Guidelines to be imposed accidentally.” The record reflects, however, that
the 72-month sentence was the result of an intentional above-guidelines
variance by the district court, not an accidental sentence within an incorrect
higher range.
      We review “the district court’s decision to depart upwardly and the
extent of that departure for abuse of discretion.” United States v. Zuniga-
Peralta, 442 F.3d 345, 347 (5th Cir. 2006). “In imposing an upward variance,
‘the district court must more thoroughly articulate its reasons’ . . . [and its]
reasons should be fact-specific and consistent with the sentencing factors
enumerated in [18 U.S.C. §] 3553(a).” United States v. Hebert, 813 F.3d 551,
562 (5th Cir. 2015).
      Here, the district court explained that a 72-month sentence was
necessary because the guidelines range failed to adequately account for the
facts of the instant case or Anthony’s long history of violent criminal behavior.
In explaining its decision to impose the 72-month sentence, the district court,
after considering the § 3553(a) factors and the guidelines, stated:



                                         8
    Case: 16-11509      Document: 00514724665    Page: 9   Date Filed: 11/15/2018


                                  No. 16-11509

      The defendant has a long history of violence . . . [.] First, he was
      found in Mexico because of an altercation he was involved in on
      the beach. Second, while being extradited he was yelling and
      refusing to comply with the officer’s instructions causing the
      officers to remove him from the airplane based upon their view
      that he needed to be removed for the safety of other passengers.
      He further had to be sedated to be transported back[.] . . . He has
      an attempted murder conviction where he shot two people while in
      custody on this conviction. He committed 60 infractions, including
      striking an officer, creating a disturbance, threatening an officer,
      sexual misconduct, assaulting an officer, and fighting. He has also
      been convicted of aggravated robbery with the use of a gun which
      received . . . no criminal history points and an assault, bodily
      injury, where he assaulted the son of his girlfriend while his
      girlfriend hid in her bedroom closet.

Based on this information, the district court opined that “a sentence of 72
months is appropriate in this case[,]” and “necessary to protect the public from
future crimes of the defendant.” The district court continued that the sentence
was “appropriate to reflect the seriousness of this offense, provide adequate
[deterrence], and promote respect for the rule of law.” We have upheld similar
upward variances based on § 3553(a) factors. See Hebert, 813 F.3d at 563
(affirming   district   court’s   “significant   upward    variance   from    the
recommendation in the PSR” in imposing a 92-year sentence after application
of the § 3553(a) sentencing factors); United States v. Brantley, 537 F.3d 347,
348 (5th Cir. 2008) (affirming a sentence of incarceration 253% higher than the
top of the Guidelines range after application of § 3553(a) factors); United States
v. Smith, 417 F.3d 483, 492–93 (5th Cir. 2005) (affirming a sentence of
incarceration nearly 300% higher than the top of the Guidelines range after
application of § 3553(a) factors). Further, the district court properly provided
a fact-specific explanation, thoroughly articulating its reasons for imposing the
upward variance to Anthony’s sentence. See Hebert, 813 F.3d at 562.
Accordingly, we conclude that the district court did not abuse its discretion in


                                        9
   Case: 16-11509    Document: 00514724665      Page: 10   Date Filed: 11/15/2018


                                 No. 16-11509

imposing the upward variance. Zuniga-Peralta, 442 F.3d at 347.


Consecutive Sentences
      Anthony further argues that there is a discrepancy between the district
court’s written and oral pronouncements of his sentence with respect to
whether his federal sentence is to run consecutively to or concurrently with his
state sentences. We disagree.
      We review special conditions imposed in a written judgment for abuse of
discretion. United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002). We
examine the entire record to determine the district court’s intent. See United
States v. McAffee, 832 F.2d 944, 946 (5th Cir. 1987). The SOR, which is part of
that record, clarifies the district court’s intent to run Anthony’s federal
sentence consecutively to his state sentences. See United States v. Tafoya, 757
F.2d 1522, 1529 (5th Cir. 1985). Consequently, there is no discrepancy because
the district court was silent at sentencing regarding how Anthony’s federal and
state sentences were to be served, whereas the SOR instructs that they are to
be served consecutively. Anthony has failed to show an abuse of discretion.
See Warden, 291 F.3d at 365 n.1.
                                III. Conclusion
      Defendant-Appellant’s sentence is affirmed.




                                      10
