     Case: 13-10502      Document: 00512787272         Page: 1    Date Filed: 09/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-10502
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 30, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DERREK STEVEN KATES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-191-1


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       Derrek Steven Kates was convicted of conspiracy to distribute and
possess with intent to distribute methamphetamine. The district court varied
downwardly from the advisory guidelines range and sentenced Kates to 300
months of imprisonment and a four-year term of supervised release. He raises
various challenges to his sentence.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10502

      Kates argues that the district court mistakenly did not apply a two-level
enhancement under U.S.S.G. § 2D1.1(b)(5) and that this omission created an
ambiguity regarding whether the district court actually intended to assess the
enhancement. The record reflects that the district court intended to apply the
enhancement but failed to include it in its calculation of Kates’s offense level
and guidelines range of imprisonment. However, Kates has not shown that
any error caused the district court to adopt or apply an incorrect guidelines
range, see United States v. Stephens, 717 F.3d 440, 446 (5th Cir. 2013), or a
reasonable probability that he would have received a lesser sentence but for
the error. See United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). To the
contrary, the record suggests that any error inured to his benefit. Thus, he has
not shown reversible plain error. See Puckett v. United States, 556 U.S. 129,
134-35 (2009).
      Furthermore, Kates argues that the district court wrongly applied an
enhancement under U.S.S.G. § 2D1.1(b)(14)(D) because he merely avoided or
fled from arrest. However, the facts do not reflect that Kates instinctively fled
in the aftermath of a crime. See United States v. Phillips, 210 F.3d 345, 348
(5th Cir. 2000). Kates, after being arrested for a related state offense, became
a fugitive to avoid being captured and prosecuted for all pending charges. He
ignored a directive to turn himself in because there was a federal warrant for
his arrest, did not present himself for arrest or prosecution, and remained a
fugitive for nearly a month to avoid the judicial process until he was captured
unwillingly. This conduct is indicative of a volitional and deliberate attempt
to obstruct justice. United States v. Greer, 158 F.3d 228, 239 (5th Cir. 1998);
see United States v. O’Callaghan, 106 F.3d 1221, 1223 (5th Cir. 1997). Thus,
he has not shown that the district court clearly erred. United States v. Juarez-
Duarte, 513 F.3d 204, 208 (5th Cir. 2008).



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                                  No. 13-10502

       Kates argues for the first time on appeal that the district court wrongly
assessed a leadership-role enhancement under U.S.S.G. § 3B1.1(c) because he
and his codefendant were equally culpable. The district court’s determination
regarding his role in the offense is a factual finding that cannot constitute plain
error. See United States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir. 2005);
United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995).
      He further challenges the district court’s application of an enhancement
under U.S.S.G. § 2D1.1(b)(1). He concedes that, during a search of his home,
agents found a gun as well as methamphetamine and drug paraphernalia, but
he argues that the gun was in a locked safe. However, the facts support that
the firearm was accessible to protect the methamphetamine as well as the
participants during their illicit activities. See United States v. Rodriguez, 62
F.3d 723, 724 (5th Cir. 1995). Also, there was a sufficient spatial relationship
between the gun and indicia of drug trafficking. See United States v. Juluke,
426 F.3d 323, 326, 328 (5th Cir. 2005); United States v. Navarro, 169 F.3d 228,
230, 235 (5th Cir. 1999). Because it is not clearly improbable that the gun was
connected with the offense, see § 2D1.1, comment. (n.11(A)), the district court
did not clearly err. See Juarez-Duarte, 513 F.3d at 208.
      Kates argues that his sentence was substantively unreasonable because
the district court did not grant a more substantial downward variance. The
record establishes that the district court at sentencing made an individualized
determination based on the facts presented and with reference to the 18 U.S.C.
§ 3553 factors and considered the arguments in support of a more substantial
downward variance. The court agreed that Kates did not warrant a criminal
history category at the level of a career offender and varied downwardly on
that basis. Kates’s unsupported argument that the district court should have
sentenced him lower below the guidelines range reflects his disagreement with



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                                    No. 13-10502

the propriety of his sentence and the district court’s weighing of the § 3553(a)
factors. Thus, Kates has failed to overcome the presumption that his sentence
was substantively reasonable, see United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009), and has not shown that the district court abused its discretion.
See Gall, 552 U.S. 38, 51 (2007).
      Finally, Kates argues that the district court made drug-quantity findings
at sentencing by a preponderance of the evidence that caused him to be eligible
for a higher sentence under the Sentencing Guidelines. He contends that, in
light of Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013), and Peugh v.
United States, 133 S. Ct. 2072 (2013), the Guidelines are “law” and, thus, are
subject to the requirement that a jury find any fact that increases the penalty
range. However, the district court engaged only in factfinding that altered the
guidelines range rather than increase the statutory minimum sentence, and,
thus, the facts did not have to be admitted by Kates or found by a jury beyond
a reasonable doubt. See Alleyne, 133 S. Ct. at 2163; United States v. Hinojosa,
749 F.3d 407, 412-13 (5th Cir. 2014). Accordingly, Kates has not shown error,
plain or otherwise.
      AFFIRMED.




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