     Case: 16-11063      Document: 00513962910         Page: 1    Date Filed: 04/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-11063                                  FILED
                                  Summary Calendar                            April 21, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KENDRA WARD,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-21-6


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Kendra Ward was convicted pursuant to a guilty plea of conspiring to
possess with the intent to distribute methamphetamine, in violation of 21
U.S.C. §§ 846, 841(a)(1) & (b)(1)(B).           She appeals the 220-month, below-
guidelines sentence, imposed in her case on the grounds that it is procedurally
and substantively unreasonable.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11063     Document: 00513962910      Page: 2    Date Filed: 04/21/2017


                                  No. 16-11063

      First, Ward contends that the district court erred in denying her a
reduction in her offense level pursuant to U.S.S.G. § 3E1.1 for acceptance of
responsibility. She argues that she met almost all of the criteria for acceptance
of responsibility and that her continued contact with her co-defendant and
romantic partner should not have precluded a reduction. However, a district
court may find that a defendant’s conduct is inconsistent with acceptance of
responsibility if, as in this case, she fails to terminate or withdraw from her
criminal conduct or associations or if she fails to abide by the conditions of her
pre-trial release. See § 3E1.1, comment. (n.3); United States v. Hooten, 942
F.2d 878, 882-83 & n.11 (5th Cir. 1991). Ward has not shown error.
      Next, Ward argues that the district court improperly limited the degree
of her downward departure under U.S.S.G. § 5K1.1 by departing from the
sentencing guideline range that would have applied based on her uncharged
offense conduct if the prosecutor’s charging decision had not resulted in a 240-
month statutory maximum term of imprisonment for her offense. We have
jurisdiction to consider Ward’s claim because a district court commits a
violation of law if it fails to base the extent of a § 5K1.1 departure solely on
assistance-related concerns. See United States v. Malone, 828 F.3d 331, 341
(5th Cir.), cert. denied, 137 S. Ct. 526 (2016); United States v. Desselle, 450 F.3d
179, 182 (5th Cir. 2006).
      We will review Ward’s claim for plain error only because she did not raise
her argument in the district court. See Puckett v. United States, 556 U.S. 129,
135 (2009). To show plain error, Ward must show that an error occurred, that
the error was clear or obvious, and that the error affected her substantial
rights. Id. If she makes that showing, we have the discretion to correct the
error if it seriously affected the integrity, fairness, or public reputation of the
proceedings. Id.



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                                 No. 16-11063

      The district court’s statements at sentencing do not make clear whether
it based the extent of Ward’s downward departure only on assistance-related
factors or whether it also considered Ward’s offense conduct and the fact that
her charges precluded her from being subject to a much higher sentence. Even
if we assume that the district court erred by conflating its consideration of the
extent of the § 5K1.1 departure with its consideration of relevant 18 U.S.C.
§ 3553(a) factors, we nevertheless conclude that Ward has not shown that any
error affected her substantial rights. The record does not establish that, but
for the alleged consideration of those factors, Ward would have received a
shorter sentence. See United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010);
cf. Malone, 828 F.3d at 341 (finding no plain error where the district court
merely “muddled the steps” in formulating the sentence).
      Finally, Ward argues that her sentence is unreasonable because it was
based in part on the district court’s improper consideration of her uncharged
conduct and the effect of the prosecutor’s charging decision in determining her
sentence. Because Ward did not raise her argument in the district court, we
will review the claim for plain error only. See Puckett, 556 U.S. at 135. Ward
has not shown that the district court improperly considered her uncharged
conduct and the effect of the prosecutor’s charging decision on her sentence.
Those facts were relevant to the nature and circumstances of Ward’s offense
as well as her history and characteristics. The district court had the discretion
to consider the extent of Ward’s assistance and her full offense conduct,
criminal history, and other § 3553(a) factors in determining her ultimate
sentence. See § 3553(a).
      The judgment of the district court is AFFIRMED.




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