     Case: 19-40448       Document: 00515289120         Page: 1     Date Filed: 01/28/2020




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

                                                                             FILED
                                                                        January 28, 2020
                                     No. 19-40448                        Lyle W. Cayce
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

KENNETH S. JONES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:18-CR-1045-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Kenneth S. Jones pleaded guilty, without a plea agreement, to one count
of bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2113(d). The district
court sentenced him to, inter alia, a within-Sentencing Guidelines term of 220-
months’ imprisonment.
       As he did in district court, Jones challenges his sentence by asserting the
court improperly relied on Guideline § 4B1.1 (career-offender enhancement) in


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-40448

calculating his advisory Guidelines sentencing range. According to Jones,
Guideline § 4B1.1 is inapplicable because the judgments on which the court
relied in applying the enhancement (two federal convictions for controlled-
substance offenses) were electronically signed and, therefore, not in accordance
with Federal Rule of Criminal Procedure 32. See Fed. R. Crim. P. 32(k)(1)
(requiring judges “sign” judgments of conviction). Jones contends that, because
the two prior judgments were improperly executed, the career-offender
enhancement’s requirement that he “has at least two prior felony convictions
of either a crime of violence or a controlled substance offense” is not met. See
U.S.S.G. § 4B1.1(a)(3).    (To the extent Jones challenges the substantive
reasonableness of his within-Guidelines sentence, he has abandoned this
contention for failure to brief. See United States v. Scroggins, 599 F.3d 433,
446–47 (5th Cir. 2010) (citation omitted) (“A party that asserts an argument
on appeal, but fails to adequately brief it, is deemed to have waived it. It is not
enough to merely mention or allude to a legal theory.” (internal citations
omitted)).)
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). 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).




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                                    No. 19-40448

      We need not address whether electronic signatures contravene Rule
32(k)(1) because our court has previously held “a district court’s conclusion that
evidence submitted to prove the fact of a prior conviction bears sufficient
indicia of reliability . . . is reviewed for clear error”. See United States v. Ortega-
Calderon, 814 F.3d 757, 759 (5th Cir. 2016) (internal quotation marks and
citation omitted). In that regard, “[t]here is no clear error if the district court’s
finding is plausible in [the] light of the record as a whole”. United States v.
Serfass, 684 F.3d 548, 550 (5th Cir. 2012) (citation omitted). “A finding of fact
is clearly erroneous only if, after reviewing all the evidence, we are left with
the definite and firm conviction that a mistake has been committed.” Id.
(internal quotation marks and citation omitted).
      The record documents reflecting Jones’ prior criminal proceedings
include the original judgments, statements of reasons, and subsequent
judgments entered upon the revocation of supervised release.               The court
reiterated at sentencing that at issue was the factual question whether Jones
had the two prior convictions, notwithstanding the method of signature on the
judgments, before ultimately finding the evidence sufficient to support their
existence.
      In Ortega-Calderon, our court held that two documents considered by the
district court as evidence of conviction were “sufficient to withstand our
scrutiny” on clear-error review because one “contain[ed] a significant amount
of detail regarding the proceedings in the [prior] case, and the two documents
strongly corroborate[d] one another”.         Ortega-Calderon, 814 F.3d at 762.
Moreover, defendant in Ortega-Calderon “presented no evidence challenging
the veracity of the information contained in th[ose] documents”, and our court
reiterated its precedent “refus[ing] to find evidence of a prior conviction to be
unreliable when the defendant has not come forward with contrary proof”. Id.



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at 762–63 (citations omitted).   Similarly, our court has affirmed a court’s
acceptance of the existence of a prior conviction based on unrebutted
information in the presentence investigation report (PSR) when the defendant
did not deny the existence of the conviction. See United States v. Ramirez, 367
F.3d 274, 277 (5th Cir. 2004).
      Here, as in Ortega-Calderon, the documents evidencing Jones’ prior
convictions are detailed and internally consistent. See Ortega-Calderon, 814
F.3d at 762. Furthermore, as in Ramirez, the PSR contained information
regarding the prior convictions. See Ramirez, 367 F.3d at 277. And, as in both
prior cases, Jones has neither presented rebuttal evidence nor denied the
convictions. See Ortega-Calderon, 814 F.3d at 762; Ramirez, 367 F.3d at 277.
      AFFIRMED.




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