     Case: 15-50321   Document: 00513560584        Page: 1   Date Filed: 06/22/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 15-50321                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                            June 22, 2016
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

KEVIN DWAYNE BROWN, also known as Kevin Dwayne Brown, Sr., also
known as Kevin D. Brown, also known as Dwayne Brown, also known as
Kevin Brown,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Kevin D. Brown appeals the district court’s order sentencing him to ten
years of supervised release following his conviction for failure to register as a
sex offender under 18 U.S.C. § 2250(a). Because Brown did not meet the plain-
error standard, we AFFIRM.
              FACTS AND PROCEDURAL BACKGROUND
      In 1991, Kevin D. Brown was convicted of lewd and lascivious acts with
a child under the age of fourteen after he pleaded guilty to sexually assaulting
a six-year-old, autistic girl on a bus. Brown was sentenced to probation and
required to register as a sex offender for life, including within thirty days of
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moving to a new city or county and within ten days of changing his residence
within the same city or county. Brown relocated to Indiana following his
conviction and registered as a sex offender. Indiana authorities notified Brown
that he was still subject to the lifetime registration requirement and that he
must notify Indiana if he moved to a new state.
       In 2011, 1 Brown moved to San Antonio, Texas. He remained in San
Antonio for two years before relocating to Lumberton, North Carolina. Brown
then returned to San Antonio in March 2014 before moving back to Indiana in
May 2014. In August of 2014, Brown made his final move to San Antonio and
lived there until his arrest. Brown failed to register or notify the authorities
of any of these moves.
       Upon resettling in San Antonio, Brown applied for Social Security
benefits. His application alerted the United States Marshals Service that he
had relocated to Texas, and Marshals were dispatched to Brown’s address in
San Antonio, which was a Days Inn hotel. A front desk attendant identified
Brown as a guest at the hotel from a photo provided by the Marshals. Brown
was subsequently apprehended and voluntarily submitted to an interview with
the Marshals. Brown admitted to not registering after moving to San Antonio,
but claimed that he failed to do so because he was being threatened and
assaulted by people who discovered he was a sex offender.
       Brown was indicted with and pleaded guilty to one count of failing to
register as a sex offender in violation of 18 U.S.C. § 2250(a).                  The Pre-
Sentencing Report (PSR) assigned a base offense level of 16 according to
U.S.S.G. § 2A3.5, which after a three-level reduction for acceptance of



       1 There is a dispute over when Brown first relocated to San Antonio. Brown’s wife
claims that she and Brown moved to San Antonio in April of 2010 while Brown stated it was
April of 2011. Brown’s timeline, however, seems to be correct because he registered as a sex
offender in Indiana in April 2011.
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                                        No. 15-50321
responsibility resulted in a total offense level of 13. Following a review of
Brown’s extensive criminal history, 2 the PSR assigned a criminal history score
of four and a criminal history category of III.                   Neither Brown nor the
government objected to the PSR.
        The    district    court    accepted        the   PSR’s      recommendations         and
acknowledged that Brown most likely failed to register because he was being
threatened and assaulted. The district court, however, remained concerned
that Brown did not have a permanent residence in San Antonio and, after
acknowledging review of the 18 U.S.C. § 3553(a) factors, sentenced Brown to
fifteen months of imprisonment and ten years of supervised release. Brown
timely appealed the ten-year term of supervised release.
                                       DISCUSSION
        Because Brown failed to object to the term of supervised release before
the district court, we review for plain error. United States v. Hernandez, 690
F.3d 613, 620 (5th Cir. 2012). We reverse for plain error if four conditions are
met: 1) “there must be an error or defect—some sort of deviation from a legal
rule—that has not been intentionally relinquished or abandoned;” 2) “the legal
error must be clear or obvious, rather than subject to reasonable dispute;” 3)
“the error must have affected the appellant’s substantial rights;” and 4) if these
elements are satisfied, then the court “has the discretion to remedy the error—
discretion which ought to be exercised only if the error seriously affects the




   2 Aside from the sex offense, Brown has pleaded guilty to offenses on ten occasions: 1)
being in a city park after curfew, 2) consuming an alcoholic beverage in a city park and being
in a city park after curfew, 3) inflicting corporal injury to a spouse, 4) battery and assault
with a deadly weapon, 5) possession of marijuana and driving while under the influence, 6)
residential entry and theft, 7) public intoxication, 8) driving under the influence, 9) failure to
return to a lawful detention center, and 10) domestic battery and a parole violation. Brown
also had two charges which were either dismissed, or to which he pled nolo contendere and
had two arrests that resulted in no charges.
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fairness, integrity or public reputation of judicial proceedings.” United States
v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc).
                                        I.
      The government concedes the first two prongs of the plain error
analysis—that the district court erred in sentencing Brown to a ten-year term
of supervised release and that the error was obvious. Therefore, we only review
whether that error affected Brown’s substantial rights and, if so, whether we
should exercise our discretion to correct the error.
                                        A.
      To show that an error affects a defendant’s substantial rights, the
defendant is “ordinarily require[d] . . . to show that the error ‘affected the
outcome of the district court proceedings.’” United States v. Mudekunye, 646
F.3d 281, 289 (5th Cir. 2011) (quoting United States v. John, 597 F.3d 263, 284
(5th Cir. 2010)). This can be done by demonstrating “a reasonable probability
that, but for the district court’s misapplication of the Guidelines, he would have
received a lesser sentence.” Id. (citing United States v. Blocker, 612 F.3d 413,
416-17 (5th Cir. 2010). “[A] defendant has shown a reasonable probability that
he would have received a lesser sentence when (1) the district court mistakenly
calculated the wrong Guidelines range, (2) the incorrect range is significantly
higher than the true Guidelines range, and (3) the defendant is sentenced
within the incorrect range.” Id. (citing John, 597 F.3d at 284-85). All three of
these elements are met in this case.
      The government concedes that the district court mistakenly calculated
the Guidelines range. The PSR relied on the Sentencing Guidelines and 18
U.S.C. § 3583(k) when calculating Brown’s term of supervised release. The
Guidelines instruct that those convicted of a Class C felony, such as a
conviction for failure to register according to 18 U.S.C. § 2250(a), receive a term
of supervised release of between one and three years. U.S.S.G. § 5D1.2(a)(2).
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In contrast, 18 U.S.C. § 3583(k) provides that the term of supervised release
resulting from a conviction for failure to register as a sex offender is five years
to life. The PSR resolved this conflict by citing to U.S.S.G. § 5D1.2(c), which
states that no term of supervised release may be less than the statutory
minimum, and determined that the proper range for Brown’s supervised
release was five years to life. But in doing so, the PSR failed to consider
Guidelines Amendment 786.
        Amendment 786 clarifies that when the statutory range of supervised
release is above the maximum of the recommended term of supervised release
in § 5D1.2, then a single point of supervised release exists at the bottom of the
statutory range.     U.S. Sentencing Guidelines Manual, Supp. to App’x C,
Amend. 786, at 80-82 (U.S. Sentencing Comm’n 2015). Since this amendment,
we have held that the correct term of supervised release for failure to register
under 18 U.S.C. § 2250(a) is a single point of five years. United States v.
Putnam, 806 F.3d 853, 855 (5th Cir. 2015) (per curiam); United States v.
Segura, 747 F.3d 323, 330 (5th Cir. 2014). Because the district court calculated
an incorrect Guidelines range for supervised release, we move to the second
step.
        For the sentence to affect Brown’s substantial rights it must also be
shown that the sentence is significantly higher than the true Guidelines range.
Here, the correct Guidelines range was a single point of five years and Brown
received a ten-year term. We have consistently held that any sentence above
the Guidelines range satisfies the significantly higher step for the substantial
interest prong of the plain error analysis. See, e.g., United States v. Hernandez,
690 F.3d 613, 621 (5th Cir. 2012) (holding that a sentence “12 months higher
than the top-end of the correct Guidelines range” affected the defendant’s
substantial rights); John, 597 F.3d at 263 (determining that a disparity of
twenty one months affected the defendant’s substantial rights); United States
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v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005) (concluding that a sentence
of seventy-seven months affected substantial rights when correct range was
thirty-three to forty-one months). A recent opinion reviewing an incorrect term
of supervised release for a failure to register offense is also informative. In
United States v. Putnam, the defendant was convicted of failure to register as
a sex offender under 18 U.S.C. § 2250(a).         806 F.3d at 854.      The PSR
recommended a term of supervised release of five years to life, which the
district court adopted, sentencing the defendant to fifteen years of supervised
release. Id. at 855-55. We concluded that the fifteen-year term of supervised
release, which fell within “the erroneous ‘five years to life’ range,” affected the
defendant’s substantial rights because it was outside the correct Guidelines
range. Id. at 855-56. Given our broad application of the second step of the
substantial rights analysis, other cases finding a substantial disparity with
incorrect sentences closer to the correct Guidelines range than Brown’s, and
the recent decision in Putnam under similar circumstances, we conclude that
Brown’s sentence is significantly higher than the correct Guidelines range.
      Finally, it must be shown that Brown was sentenced within the incorrect
range. Once again, the government’s concession that there was plain error and
that Brown was sentenced above the correct, single five-year point of
supervised release fulfills this step of the analysis. Thus, the sentence affects
Brown’s substantial rights unless there is evidence in the record that the
district court intended to impose an above-Guidelines term of supervised
release. Mudekunye, 646 F.3d at 290.
      It is not apparent from the record that Brown would have received an
above-Guidelines sentence if the district court had calculated the correct
Guidelines range. Rather, the record shows that the district court intended
leniency during sentencing.       For example, the district court asked the
government “what interest is served” by sentencing Brown to a term of
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                                  No. 15-50321
imprisonment above the minimum of the Guidelines range. And the district
court stated that, although it believed Brown’s testimony that he only failed to
register because people were threatening and assaulting him, it was not
comfortable sentencing Brown to time served because he was homeless at that
time, which impaired his ability to register. The district court then sentenced
Brown to a below-Guidelines term of imprisonment. Therefore, the record
demonstrates that the district court most likely intended leniency when
sentencing Brown, imposing a term of supervised release on the low end of the
incorrect Guidelines range.
      The government nevertheless contends, relying on United States v.
Segura, that the imposed term of supervised release does not affect Brown’s
substantial rights because the district court sentenced him after engaging in
an independent assessment of § 3553(a) factors. In Segura, we concluded that
a life term of supervised release for failure to register as a sex offender did not
affect the defendant’s substantial rights because “[t]he district court’s decision
was based upon an assessment—independent of the PSR’s erroneous
recommendation—that [the defendant] required lifetime supervision.” 747
F.3d at 331. But we did so because of the district court’s concern that the
defendant would not assimilate back into society or find employment. See id.
at 330-31. In other words, the district court’s concern for recidivism served as
an independent basis for the life term of supervised release. That is different
from this case, where the district court rejected Brown’s request for a term of
imprisonment equal to time served because his family was not yet settled into
a permanent home in San Antonio. We therefore conclude that the imposed
term of supervised release affects Brown’s substantial rights.
                                        B.
      Concluding that an error affects a defendant’s substantial rights,
however, is not the end of the analysis; we also must decide whether to exercise
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                                  No. 15-50321
our discretion to correct the error. We exercise discretion if “the error affects
‘the fairness, integrity, or public reputation of judicial proceedings.’”
Escalante-Reyes, 689 F.3d at 425 (quoting Puckett v. United States, 556 U.S.
129, 135 (2009)). Such an exercise is not automatic. Id.; see also United States
v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009) (“Not every error that increases a
sentence need be corrected by a call upon the plain error doctrine.”). Rather,
we exercise our discretion “on a case-specific and fact-intensive basis.” John,
597 F.3d at 286 (internal quotation and citation omitted).
        Our precedent cautions against exercising our discretion to correct the
error made during Brown’s sentencing. For example, in Segura, we stated that
we would not have exercised discretion to correct the error because the
defendant’s extensive criminal history did not call the fairness of a life term of
supervised release into question. 747 F.3d at 331. Brown has an extensive
criminal history, which includes offenses that violated conditions of his
probation. We have consistently held that it is not necessary to correct an error
if there is sufficient evidence in the record showing that the incorrect sentence
was nevertheless fair. Escalante-Reyes, 689 F.3d at 425; Segura, 747 F.3d at
331.     Here, the district court expressed its concern with the defendant’s
“temporary living arrangements” and that his life was not “squared away.”
The district court also stated that, upon release, the defendant had to find a
“residence approved by your probation officer.” Moreover, the defendant, after
asking for a below-Guidelines term of imprisonment, requested that the judge
impose “supervision for as much as you want.” Based on these facts, we
conclude that the term of supervised release is fair and does not call into
question the integrity of judicial proceedings.
                                CONCLUSION
        Reversing a district court for plain error should be “rare.” Escalante-
Reyes, 689 F.3d at 426 (Smith, J. dissenting). We decline to exercise our
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                                  No. 15-50321
discretion to correct the error because, on these facts, it does not affect the
fairness, integrity, or reputation of judicial proceedings.
      The order sentencing Brown to ten years of supervised release is
AFFIRMED.




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