     Case: 14-50866       Document: 00513046477         Page: 1     Date Filed: 05/18/2015




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

                                     No. 14-50866                                   FILED
                                   Summary Calendar                             May 18, 2015
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RODNEY WHITWORTH,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:14-CR-49


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Rodney Whitworth challenges the 120-month sentence imposed for his
guilty-plea conviction for aiding and abetting the possession of a firearm in
furtherance of a drug-trafficking crime, in violation of 18 U.S.C. §§ 2,
924(c)(1)(A)(i). He contends his sentence is procedurally and substantively
unreasonable because the court based it on erroneous facts.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-50866

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Although the parties agree plain-error review applies, the court, not the
parties, determines the appropriate standard of review. E.g., United States v.
Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc).           Even though
Whitworth raises his claims for the first time on appeal, they are reviewed
under the ordinary standard of review because he did not have a prior
opportunity to object to the facts stated in the court’s written statement of
reasons. Cf. United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003)
(per curiam) (applying the ordinary standard of review to a challenge to a
written condition of supervised release because the defendant did not have a
prior opportunity to object).
      It is procedural error to “select[] a sentence based on clearly erroneous
facts”.   Gall, 552 U.S. at 51.    Procedural errors are, however, subject to
harmless-error review. E.g., United States v. Delgado-Martinez, 564 F.3d 750,
753 (5th Cir. 2009) (internal quotations marks and citations omitted) (“A
procedural error during sentencing is harmless if the error did not affect the
district court’s selection of the sentence imposed.” (internal quotation marks
omitted)).
      The court erred in stating a firearm and two silencers, which qualified
for higher mandatory penalties, were discovered during the search of



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                                No. 14-50866

Whitworth’s home. Rather, Whitworth sold the only qualifying firearm and
silencer to an undercover agent. Nonetheless, the record demonstrates the
court would have imposed the same sentence, notwithstanding these
misstatements.   The district court varied upwards from the Guidelines-
sentencing range to account for the seriousness of Whitworth’s conduct in
possessing the kind of firearm that would have subjected him to higher
mandatory minimum statutory penalties; the uncontested record reflects
Whitworth possessed a firearm that would have subjected him to these higher
penalties. Accordingly, any procedural error was harmless. E.g., id.
     Regarding the substantive reasonableness of the sentence, the court did
not place great weight on its erroneous belief that Whitworth possessed
multiple silencers. Rather, it properly gave weight to Whitworth’s possessing
the kind of firearm that would have subjected him to higher mandatory
minimum penalties and his sales of methamphetamine to an undercover agent.
     AFFIRMED.




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