     Case: 16-11395       Document: 00514370538        Page: 1    Date Filed: 03/02/2018




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

                                    No. 16-11395                                 FILED
                                  Summary Calendar                           March 2, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CANDACE WHITTEN,

                                                 Defendant-Appellant


                     Appeal from the United States District Court
                          for the Northern District of Texas
                               USDC No. 4:16-CR-115-1


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
         Candace Whitten appeals the 120-month sentence imposed following her
guilty       plea   to   conspiracy    to   possess     with     intent     to      distribute
methamphetamine. She argues for the first time on appeal that the district
court erred in refusing to award her a three-level credit for acceptance of
responsibility under U.S.S.G. § 3E1.1. Whitten also contends that her below-
guidelines sentence is 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: 16-11395       Document: 00514370538    Page: 2   Date Filed: 03/02/2018


                                   No. 16-11395

      The argument that the district court erroneously denied Whitten credit
for acceptance of responsibility was not raised as an objection below and is
therefore reviewed for plain error. See United States v. Magwood, 445 F.3d
826, 828 (5th Cir. 2006). To succeed under the plain error standard, Whitten
must show an error that is clear or obvious and that affects her substantial
rights, but even so, this court will exercise its discretion to correct any error
only if it “seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.”     Puckett v. United States, 556 U.S. 129, 135 (2009)
(internal quotation marks and citation omitted).
      Substantial rights are affected when there is “a reasonable probability
that, but for the error, the outcome of the proceeding would have been
different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)
(internal quotation marks and citation omitted). The original presentence
report (PSR) afforded Whitten three levels of credit for acceptance of
responsibility when calculating her sentence; it was the addendum to the PSR
that later withdrew all credit for that adjustment. Although the district court
stated that it was adopting the PSR Addendum’s findings and conclusions, it
nevertheless calculated Whitten’s sentence based on the advisory guideline
range found in the original PSR. Whitten therefore received the full benefit of
credit for acceptance of responsibility. Moreover, the district court stated that
even if it had erred in ruling on the objections to the PSR, it would still impose
120 months of imprisonment. Whitten has not shown a reasonable probability
that, but for the alleged error, the outcome of the proceeding would have been
different. See id. at 1343.
      As   to   whether     her   below-guidelines   sentence   is   substantively
unreasonable, Whitten incorporates her argument that the district court erred
in denying her credit for acceptance of responsibility and contends that she



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                                 No. 16-11395

received only one month of credit for the substantial assistance she provided
to the Tarrant County prosecutions of Aryan Brotherhood members and
associates. This court ordinarily reviews the substantive reasonableness of a
sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51
(2007).
      Whitten’s reasonableness argument is unpersuasive because she
demonstrates a fundamental misunderstanding of how her sentence was
calculated. The Government’s U.S.S.G. § 5K1.1 motion included a request for
a three-level departure from the advisory guideline range on account of her
substantial assistance. The district court granted the Government’s motion.
As earlier noted, the district court used the advisory guideline range set forth
in the original PSR to calculate Whitten’s sentence. When the district court
afforded her the three-level adjustment for substantial assistance, the original
advisory guidelines range of 168 to 210 months of imprisonment dropped by 47
months, to 121 to 151 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
The district court specifically mentioned her assistance in the Tarrant County
prosecutions in giving his reasons for the sentence imposed. In light of the
preceding, Whitten has not shown that her below-guidelines sentence is
unreasonable. See Gall, 552 U.S. at 51.
      AFFIRMED.




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