     Case: 18-10445      Document: 00514768938         Page: 1    Date Filed: 12/20/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-10445                       United States Court of Appeals

                                  Summary Calendar
                                                                                Fifth Circuit

                                                                              FILED
                                                                      December 20, 2018

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff-Appellee,

v.

MICAHA PAUL SNEED, also known as Micaha “Mike” McGrath,

              Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-180-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Micaha Paul Sneed appeals the 240-month above-Guidelines sentence
imposed in connection with his conviction for one count of wire fraud. Sneed
argues that the district court clearly erred in applying the two-level
enhancement pursuant to U.S.S.G § 3A1.1(b)(1) based on the vulnerability of
victims.    Specifically, Sneed challenges the reliability of the Presentence
Report (PSR), arguing that the statements regarding one victim’s vulnerability


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10445

are conclusory and do not establish reliability. Regarding other vulnerable
victims, Sneed asserts that the record does not identify these victims or state
why the enhancement was applicable to them.
      Pursuant to § 3A1.1(b)(1), a two-level increase applies “[i]f the defendant
knew or should have known that a victim of the offense was a vulnerable
victim.” § 3A1.1(b)(1). We “review the district court’s interpretation of the
guidelines de novo,” and “a finding of unusual vulnerability for clear error and
to determine whether the district court’s conclusion was plausible in light of
the record as a whole.” United States v. Robinson, 119 F.3d 1205, 1218 (5th
Cir. 1997) (internal quotation marks and citations omitted).
      The information in the PSR and the PSR Addendum concerning the
vulnerability of victims and their identities had sufficient indicia of reliability.
Therefore, the district court was entitled to rely on the PSR when making
sentencing determinations. See United States v. Nava, 624 F.3d 226, 231 (5th
Cir. 2010). The only evidence submitted by Sneed in connection with his
objection to the two-level enhancement did not contradict the information in
the PSR regarding the vulnerability of the victims or show that the information
was unreliable. See id. (stating that defendant has the burden of presenting
rebuttal evidence demonstrating that information in the PSR is unreliable).
Accordingly, Sneed does not show that the district court clearly erred in
applying the enhancement. See Robinson, 119 F.3d at 1218.
      Moreover, even if the court erred in the application of the enhancement,
the error is harmless. In his written objections to the enhancement, Sneed
advised the court of the guidelines range without the enhancement.
Additionally, the district court imposed the statutory maximum sentence, and
the court’s statements at sentencing reveal that the sentence imposed was not
in any way based on the guidelines range; rather, the sentence was based on



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                                 No. 18-10445

the statutory maximum. Because the court was aware of the guidelines range
without the enhancement and because the district court’s statements show
that the sentence was not based on the guidelines range, any error in imposing
the two-level enhancement is harmless. See United States v. Ibarra-Luna, 628
F.3d 712, 714, 716-19 (5th Cir. 2010).
      Sneed also challenges the substantive reasonableness of his sentence,
arguing that the degree of variance was too great. Under the totality of the
circumstances, including the significant deference that is given to the district
court’s consideration of the 18 U.S.C § 3553(a) factors and the district court’s
reasons for its sentencing decision, Sneed fails to show that his 240-month
statutory maximum sentence is substantively unreasonable. See United States
v. Gerezano-Rosales, 692 F.3d 393, 400-01 (5th Cir. 2012).
      The judgment of the district court is AFFIRMED.




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