     Case: 15-31072      Document: 00513762282        Page: 1     Date Filed: 11/16/2016




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

                                     No. 15-31072                           FILED
                                                                    November 16, 2016
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

              Plaintiff - Appellee

v.

LEIGHTON COMRIE,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana


Before JOLLY, HAYNES, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
       In this appeal, a defendant urges us to vacate his conviction and sentence
pursuant to a Religious Freedom Restoration Act (“RFRA”) defense he concedes
was never presented to the district court. Finding no reversible plain error, we
AFFIRM.
                            FACTUAL BACKGROUND
       On Christmas Eve, 2014, Louisiana Probation and Parole officers made
a routine visit to Leighton Comrie’s home.1 Comrie’s brother-in-law let the



       1 Comrie was on probation pursuant to his 2013 conviction for possession with intent
to distribute marijuana.
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                                    No. 15-31072
officers into the residence, and the officers “detected a strong odor of
marijuana.” Officers saw Comrie exit the master bathroom “holding a
marijuana cigarette.” The probation officers summoned the New Orleans
Police Department, and “recovered” the following items from Comrie’s home:
“a .357 caliber . . . revolver, . . . 82 rounds of .357 [caliber] ammunition, . . . 313
rounds of .22 [caliber] ammunition, 50 rounds of .45 caliber ammunition,”
either 3 or 4 shooting range target sheets, and “approximately 12 grams [of]
marijuana.”
      Comrie subsequently entered an unconditional guilty plea for violations
of 21 U.S.C. § 844(a), which criminalizes possession of controlled substances
(here, marijuana), and 18 U.S.C. § 922(g), which forbids certain classes of
people (here, an individual with a prior felony conviction) from possessing
firearms.
      During the proceedings below, connections between Comrie’s marijuana
use and his affiliation with the Rastafari religion entered the record through
two sources: (1) the U.S. Probation Office’s presentence investigation report,
and (2) an oral statement offered by Comrie’s wife.
      The presentence report, which the district court adopted “as its findings
of fact,” includes quotations through which Comrie directly linked marijuana
use and Rastafari religious practices. According to Comrie, he grew up under
the care of grandparents in Trenchtown, Kingston, Jamaica. There, at age
seven, Comrie began using marijuana in connection with his Rastafari faith.
According to Comrie, he thus grew up “smoking weed, reading the bible, and
praising God.” Neither Comrie nor the Government objected to the presentence
report.




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                                          No. 15-31072
       At the sentencing hearing, Comrie’s wife stated, “[h]e had marijuana . . .
and it’s a part of his religion, and it2 wasn’t right, with all due respect to the
Court.” After defense counsel presented argument regarding mitigating
circumstances, Comrie confirmed that did not wish to withdraw his guilty plea.
       The district court rendered concurrent sentences of 15 months
imprisonment, “with credit for time served in federal prison or waiting for
federal prison,” for each of Comrie’s two offenses.
       Comrie now appeals his marijuana possession conviction and sentence.
                                       JURISDICTION
       The district court had jurisdiction over this federal criminal case under
18 U.S.C. § 3231. This Court has appellate jurisdiction to review Comrie’s
conviction and sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                 STANDARD OF REVIEW
       The parties suggest that we should review the record for plain error. See
Appellant’s Br. at 7; Appellee’s Br. at 5. Though Comrie’s failure to raise a
RFRA defense below may constitute a waiver, the Government candidly
conceded at oral argument that its briefing did not urge us to deem Comrie’s
argument waived. We therefore apply the plain error standard.3
        “To succeed on plain error review, [Comrie] must show (1) a forfeited
error, (2) that is clear or obvious, and (3) that affects [his] substantial rights.”



       2   In context, this use of the word “it” refers to Comrie’s prosecution.
       3  Because we hold Comrie demonstrates no reversible plain error, we leave open the
question of whether we could withhold appellate review altogether pursuant to our waiver
doctrine. See Musacchio v. United States, 136 S. Ct. 709, 718 & n.3 (2016) (holding that a
district court’s “failure to enforce” an unraised limitations defense under 18 U.S.C. § 3282(a)
“cannot be a plain error,” and consequently leaving open the question of “whether the failure
to raise that defense in the District Court amount[ed] to waiver . . . .”). In a case predating
the Supreme Court’s Musacchio decision, this Court applied plain error review to an unraised
RFRA argument. See United States v. Muhammad, 165 F.3d 327, 336 (5th Cir. 1999)
(applying plain error review to First Amendment and RFRA arguments “raised for the first
time on appeal”).
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                                  No. 15-31072
United States v. Cordova-Soto, 804 F.3d 714, 722 (5th Cir. 2015) (citing Puckett
v. United States, 556 U.S. 129, 135 (2009)), cert. denied, 136 S. Ct. 2507 (2016).
“If an appellant makes such a showing, we may exercise our discretion ‘to
remedy the error only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” Id. (quoting Puckett, 556 U.S. at
135) (ellipsis and brackets omitted).
                                  ANALYSIS
      Our holding that no reversible plain error exists flows necessarily from
our conclusion that the district court committed no error. We would not, in this
case, exercise our remedial discretion even if we perceived an error, because
we discern no threat to “the fairness, integrity or public reputation of judicial
proceedings” in the district court’s failure to unilaterally raise and consider a
RFRA defense that Comrie himself never asserted. See United States v.
Muhammad, 165 F.3d 327, 337 (5th Cir. 1999) (concluding that a RFRA
defense raised “for the first time on appeal” would not warrant the exercise of
remedial discretion under the final prong of plain error review).
                             I.    Absence of Error
      As a threshold matter, we hold that the district court committed no error
when it accepted Comrie’s plea and sentenced him without identifying, sua
sponte, and expressly considering possible RFRA arguments.
      “Congress enacted RFRA in order to provide greater protection for
religious exercise than is available under the First Amendment.” Holt v. Hobbs,
135 S. Ct. 853, 859–60 (2015). “A person whose religious practices are burdened
in violation of RFRA ‘may assert that violation as a claim or defense in a
judicial proceeding and obtain appropriate relief.’” Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42
U.S.C. § 2000bb–1(c)).


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                                     No. 15-31072
      Notably,     the   statutory    framework      depends     upon    litigants   to
affirmatively invoke RFRA defenses. See Muhammad, 165 F.3d at 336–37
(applying plain error standard of review where appellant only raised a RFRA
argument “for the first time on appeal”); see also Hankins v. Lyght, 441 F.3d
96, 104 (2d Cir. 2006) (“A party may certainly waive or forfeit a RFRA defense
by failing to argue that a law or action substantially burdens the party’s
religion.”). To claim RFRA’s protections, a person “must show that (1) the
relevant religious exercise is ‘grounded in a sincerely held religious belief’ and
(2) the government’s action or policy ‘substantially burdens that exercise by,
for example, forcing the plaintiff to engage in conduct that seriously violates
his or her religious beliefs.’” Ali v. Stephens, 822 F.3d 776, 782–783 (5th Cir.
2016) (quoting Holt, 135 S. Ct. at 862) (brackets and internal quotations
omitted).4 Only “if the [religious person] carries this burden” does the
government “bear[] the burden of proof to show that its action or policy (1) is
in furtherance of a compelling governmental interest and (2) is the least
restrictive means of furthering that interest.” Id. at 783.
      In this case, even assuming for the sake of argument that Comrie’s
statements recorded in the presentence report and his wife’s statements at the
sentencing hearing would satisfy Comrie’s initial RFRA burdens, Comrie never
“assert[ed]” a RFRA violation “as a claim or defense” below. See 42 U.S.C. §
2000bb-1(c); see also Appellant’s Br. at 7 (conceding that “Comrie did not raise
this defense below . . . .”). Instead, Comrie entered a guilty plea.
      We conclude that the district court committed no error, and certainly no
reversible “plain error,” when it accepted Comrie’s plea and sentenced him


      4  Ali construed the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA), 42 U.S.C. § 2000cc, not RFRA. The precedent provides guidance in RFRA cases,
however, since the RLUIPA “mirrors RFRA” and allows persons “to seek religious
accommodations pursuant to the same standard as set forth in RFRA.” See Holt, 135 S. Ct.
at 860 (quoting O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. at 436).
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without reference to an unraised RFRA defense. Cf. Musacchio v. United
States, 136 S. Ct. 709, 718 (2016) (“We conclude . . . that a district court’s failure
to enforce an unraised limitations defense under [18 U.S.C.] § 3282(a) cannot
be a plain error.”). Comrie’s appeal, therefore, fails to satisfy the first prong of
our plain error review.
                            II.    Remedial Discretion
      We further note that even if Comrie could satisfy the first three prongs
of our plain error review standard, his appeal does not present circumstances
warranting our discretionary intervention. Upon plain error review, “we may
exercise our discretion ‘to remedy [an] error only if the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.’”
Cordova-Soto, 804 F.3d at 722 (quoting Puckett, 556 U.S. at 135) (ellipsis and
original brackets omitted).
      Comrie’s failure to raise RFRA arguments below deprived the district
court of its best opportunity to consider the “fact-driven” RFRA analysis, and
left the Government with “no opportunity to present factual evidence of either
its compelling governmental interests or the legitimate . . . objectives to be
served. . . .” See Muhammad, 165 F.3d at 337. “[O]ne of the most important
purposes of the plain error rule . . . is to require parties to present issues to the
district court for resolution, and potentially avoid unnecessary, wasteful
appeals as to issues that the district court might have decided in the
appellant’s favor, had the court simply been given an opportunity to do so.” Id.
Under the circumstances of this case, we conclude that “the fairness, integrity,
and public reputation of judicial proceedings are not seriously affected by our
discretionary decision to enforce our long-standing, well-established, salutary
requirement that issues be first considered by the district court.” See id.




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                               No. 15-31072
                             CONCLUSION
     We hold that the district court did not err by accepting Comrie’s guilty
plea and sentencing him without reference to Comrie’s unraised RFRA
arguments. Under the circumstances presented by this case, moreover, the
error Comrie perceives would not persuade us to exercise our remedial
discretion. Accordingly, we AFFIRM.




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