     Case: 18-10212      Document: 00514853038         Page: 1    Date Filed: 02/27/2019




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

                                    No. 18-10212                             FILED
                                  Summary Calendar                    February 27, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL CHEEK BRABSON, also known as Madman,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:17-CR-160-1


Before STEWART, Chief Judge, and OWEN and OLDHAM, Circuit Judges.
PER CURIAM: *
       Michael Cheek Brabson pleaded guilty to conspiracy to possess with
intent to distribute a controlled substance and was sentenced to 240 months of
imprisonment, to run consecutively to his undischarged term of imprisonment
for being a felon in possession of a firearm. Brabson contends that the district
court abused its discretion in denying defense counsel’s motion to withdraw.
Brabson also contends that the district court procedurally erred in not applying


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10212

U.S.S.G § 5G1.3(b) and running the sentence for the instant offense
concurrently with his sentence for being a felon in possession of a firearm.
      Brabson’s only notice of appeal referenced the district court’s judgment
entered on February 16, 2018, which pertained to Brabson’s conviction and
sentence. Indeed, Brabson could not have intended to appeal the district
court’s February 22, 2018, order denying defense counsel’s motion to withdraw
because the order had not yet been issued at the time Brabson filed his notice
of appeal. Thus, as the Government correctly argues, we lack jurisdiction to
review the district court’s denial of defense counsel’s motion to withdraw
because Brabson failed to file a notice of appeal. See FED. R. APP. P. 3(c)(1)(B);
Gonzalez v. Thaler, 565 U.S. 134, 147 (2012).
      To the extent that the district court found § 5G1.3(b) applicable but chose
to exercise its discretion and impose a consecutive sentence in light of the
18 U.S.C. § 3553(a) factors, Brabson has not shown any procedural error
because a district court retains the discretion to impose a consecutive sentence
as a variance even when § 5G1.3(b) applies. See United States v. Rangel,
319 F.3d 710, 713 (5th Cir. 2003); United States v. Bell, 46 F.3d 442, 446-47
(5th Cir. 1995). Moreover, to the extent that the court’s discussion could be
read to conclude that § 5G1.3(b) did not apply, any error would be harmless
given that the record establishes that the court would have imposed the same
consecutive sentence regardless of the effect of that Guideline. See United
States v. Richardson, 676 F.3d 491, 511-12 (5th Cir. 2012). The court explained
that applying the Guideline would result in a much shorter sentence that
would not appropriately address the § 3553(a) factors.        The court further
unequivocally explained that, if § 5G1.3(b) applied, the court would vary
upward to the same sentence, and it provided ample reasons under § 3553(a)




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                                  No. 18-10212

for doing so, including Brabson’s long criminal history, the need to promote
respect for the law, and to provide just punishment for the offense of conviction.
      AFFIRMED IN PART; DISMISSED IN PART FOR LACK OF
JURISDICTION.




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