     Case: 09-10553     Document: 00511062608          Page: 1    Date Filed: 03/25/2010




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

                                                  FILED
                                                                           March 25, 2010
                                     No. 09-10553
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CHRISTOPHER JABARI GARD,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:08-CR-67-1


Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Christopher Jabari Gard pleaded guilty to being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1), § 924(a)(2). Gard appeals his
within-guidelines sentence of 46 months, arguing that his sentence is
procedurally unreasonable because the district court failed to consider U.S.S.G.
§ 5G1.3(b)(2), which instructs district courts to order sentences to run
concurrently with undischarged state sentences; failed to use a concurrent



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-10553   Document: 00511062608 Page: 2        Date Filed: 03/25/2010
                                No. 09-10553

sentence as a starting point; failed to acknowledge that it was imposing a
variance; and failed to provide sufficient justification for imposing a variance.
      During his sentencing, Gard asked the court to order that his sentence run
concurrently with any sentence imposed in the state cases pending against him
on related charges. However, Gard did not raise the arguments he raises here,
namely, that the district court imposed his sentence without considering
§ 5G1.3(b)(2) and imposed a variance without sufficient justification. He also
raised no objection after sentence was imposed. Accordingly, this court reviews
his arguments for plain error. See United States v. Campos-Maldonado, 531
F.3d 337, 339 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008); United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). To demonstrate plain error, Gard must show a forfeited error that is
clear or obvious and affects his substantial rights. See Mondragon-Santiago, 546
F.3d at 361. If these conditions are met, this court may exercise its discretion
to correct the error if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (citation omitted).
      There is nothing in the record to indicate that Gard’s sentence would have
been different if the court had given consideration to § 5G1.3(b)(2) or had
provided greater explanation for what Gard contends is a variance. See id. at
364-65. Gard has thus failed to demonstrate error affecting his substantial
rights.   In light of this conclusion, we do not reach the parties’ threshold
arguments regarding whether § 5G1.3(b)(2) applies to state sentences that have
not been imposed.
      Accordingly, we AFFIRM the district court’s judgment.




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