     Case: 15-50820      Document: 00513517359         Page: 1    Date Filed: 05/23/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50820
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 23, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

SAMPSON DELTON COTTEN, also known as Sampson D. Cotten, also known
as Hector Castro, also known as Sampson Cotten,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CR-279-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Sampson Delton Cotten pleaded guilty to one count of preparing false
tax returns.     He appeals his 18-month, below-guidelines prison sentence,
arguing that it is procedurally and substantively unreasonable and that he
should have received a sentence of probation. He did not object after the
district court imposed the sentence, but he nonetheless contends that he



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50820

clearly and consistently pressed his arguments for a sentence of probation in
the district court and so any objection would have been futile. However, Cotten
did not alert the court to his view that it had committed procedural error or
that the 18-month sentence was unreasonable, nor did the court prevent him
from objecting or suggest that it would not have entertained objections. See
United States v. Gerezano-Rosales, 692 F.3d 393, 399-400 (5th Cir. 2012).
Accordingly, our review is for plain error only. See United States v. Whitelaw,
580 F.3d 256, 259 (5th Cir. 2009).
      Cotten contends that the district court committed procedural error by
failing to consider the 18 U.S.C. § 3553(a) factors and, in particular
§ 3553(a)(6), which instructs courts to account for “the need to avoid
unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct.” However, the court committed no
error, plain or otherwise.   It noted that it took into account the parties’
arguments, which included Cotten’s arguments under § 3553(a) for a sentence
of probation and specifically his contention that a prison sentence would result
in an unwarranted disparity. Moreover, Cotten has not demonstrated that his
sentence created any such disparity. He identifies another defendant who was
convicted of preparing false tax returns but who received a sentence of
probation. However, that defendant is not similarly situated to Cotten because
Cotten had committed prior crimes and obstructed justice by asking a witness
to lie to government officials. See § 3553(a)(6); United States v. Guillermo
Balleza, 613 F.3d 432, 435 (5th Cir. 2010).
      Urging that his sentence is substantively unreasonable, Cotten again
presses his contention that his term of imprisonment created an unwarranted
sentencing disparity with the defendant who received probation. He also faults
the district court for relying on his unadjudicated arrests and his inability to



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                                   No. 15-50820

pay restitution and for not weighing his learning disabilities and below-
average IQ more heavily.         A below-guidelines sentence is presumptively
reasonable. United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015), cert.
denied, 136 S. Ct. 920 (2016).
      As we have already explained, Cotten has not demonstrated that he and
the other defendant were similarly situated because Cotten obstructed justice
and had a criminal history. See § 3553(a)(6); Guillermo Balleza, 613 F.3d at
435. Thus, he has not established that the district court failed to take into
account a sentencing factor that should have received substantial weight in
declining to sentence him to probation. Simpson, 796 F.3d at 558.
      It appears that the district court mentioned Cotten’s prior arrests in an
effort to make the point that he had many opportunities to turn his life around
but chose not to do so. However, even if the court did err in considering
Cotten’s bare arrest record as to some of his prior unadjudicated arrests, see
United States v. Windless, 719 F.3d 415, 420 (5th Cir. 2013), Cotten has not
demonstrated that this error affected his substantial rights because the court
discussed these arrests “in conjunction with other, permissible, factors,”
United States v. Williams, 620 F.3d 483, 495 (5th Cir. 2010). In announcing
the sentence, the court explained that it also took into account that Cotten had
obstructed justice, and the court’s comments throughout the sentencing
hearing reveal that it was also influenced by the Cotten’s four prior criminal
convictions and the sophistication of the tax fraud scheme, all permissible
factors under § 3553(a).
      As for Cotten’s inability to pay restitution, a district court may not take
into account a defendant’s socio-economic status when imposing sentence.
United States v. Humphrey, 104 F.3d 65, 71 (5th Cir. 1997); see U.S.S.G.
§ 5H1.10, p.s. Contrary to Cotten’s contention, the district court did not base



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                                 No. 15-50820

its decision to impose a prison sentence on the fact that he could not afford to
pay restitution. The issue whether Cotten had paid restitution was briefly
raised at the beginning of the sentencing hearing, and both defense counsel
and the Government urged the court not to consider it in determining the
sentence. Although it was discussed in the context of whether Cotten was
similarly situated to the defendant who received probation, the Government
stressed that the primary difference between the two was not the issue of
payment of restitution—the other defendant had apparently paid substantial
restitution before sentencing—but that Cotten had a criminal history. The
court then noted that the other defendant did not instruct his clients to lie to
the IRS and obstruct justice as Cotten did. At no point did the court comment
on Cotten’s financial ability to pay restitution. Accordingly, Cotten has not
shown that the district court gave significant weight to an irrelevant or
improper factor that would overcome the presumption that his sentence is
reasonable. See Simpson, 796 F.3d at 558.
      Finally, in arguing that the district court should have placed greater
weight on his learning disabilities and IQ, Cotten essentially asks us to
reweigh the sentencing factors, which we will not do. See United States v.
McElwee, 646 F.3d 328, 344-45 (5th Cir. 2011).
      AFFIRMED.




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