     Case: 19-30055       Document: 00515259523         Page: 1     Date Filed: 01/06/2020




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

                                     No. 19-30055
                                                                                  Fifth Circuit

                                                                                FILED
                                   Summary Calendar                       January 6, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                  Plaintiff - Appellee

v.

DONNIE JERMAINE LEWIS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:17-CR-329-5


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Donnie Jermaine Lewis challenges the sentence imposed following his
guilty-plea conviction for conspiracy to distribute and possess, with intent to
distribute, five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. In that regard, Lewis asserts the district court erred in:
assessing criminal-history points for a prior sentence he received in 2000;
imposing the career-offender enhancement based on this sentence in 2000; and


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-30055

assessing two criminal-history points for Lewis’ being on supervised release at
the time of the instant offense.
      Although post-Booker, the Sentencing 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).
      Because Lewis did not preserve these issues in district court, our
review—as he concedes—is only for plain error.              E.g., United States v.
Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, he must
show a forfeited plain error (clear or obvious error, rather than one subject to
reasonable dispute) that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the
discretion to correct such reversible plain error, but generally should do so only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.
      The court found Lewis’ sentence in 2000 was accorded criminal-history
points because it resulted in his being incarcerated during the 15-year period
immediately prior to the instant offense.            See U.S.S.G. § 4A1.2(e)(1)
(instructing courts, when calculating criminal-history points, to “count any
prior sentence of imprisonment exceeding one year and one month, whenever
imposed, that resulted in the defendant being incarcerated during any part of



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                                 No. 19-30055

such fifteen-year period” immediately prior to the instant offense). Lewis
contends the court could have invoked 18 U.S.C. § 3582(c)(2) (allowing for a
sentence reduction for “a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission”) to reduce his 2000 sentence so that it was
completed prior to the relevant 15-year period and, therefore, would not receive
any criminal-history points for his present sentence.
      Lewis, however, cites no caselaw to support this assertion. Additionally,
relief under § 3582(c)(2) is no longer available to him because he has completed
his 2000 sentence’s term of imprisonment, and, when a defendant “has
completed the confinement portion of his sentence, any argument that the
prison term should be reduced is moot”. United States v. Rosenbaum-Alanis,
483 F.3d 381, 382 (5th Cir. 2007), abrogated on other grounds by United States
v. Heredia-Holguin, 823 F.3d 337 (5th Cir. 2016) (en banc). Finally, reducing
a completed sentence would be inconsistent with the Guidelines, which state
that a reduced sentence may never “be less than the term of imprisonment the
defendant has already served”. U.S.S.G. § 1B1.10(b)(2)(C). The requisite clear
or obvious error is lacking.
      Because Lewis’ challenge to the career-offender enhancement is
premised on his contention that the 2000 sentence should not have received
criminal-history points, the court did not plainly err by imposing the
enhancement.
      Lewis asserts, without relying on any authority, that the court’s
assessment of two criminal-history points for his being on supervised release
at the time of the instant offense, pursuant to Guideline § 4A1.1(d), was
erroneous because his supervised release was not revoked and there was no
finding that he committed an act warranting revocation. But neither the text



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                                No. 19-30055

of § 4A1.1, nor its accompanying commentary, requires revocation, or a finding
that defendant’s new offense conduct warrants revocation, prior to the
imposition of criminal-history points.    Lewis again fails to show clear or
obvious error.
      AFFIRMED.




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