     Case: 18-50894      Document: 00515083852         Page: 1    Date Filed: 08/20/2019




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

                                                                               FILED
                                    No. 18-50894                         August 20, 2019
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TOMMY LAMAR HALL,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 6:18-CR-181-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Tommy Lamar Hall appeals his 120-month sentence imposed following
his guilty plea conviction for possession of a firearm by a convicted felon. He
argues that the district court plainly erred as a result of a procedural error in
making an upward departure. Specifically, he asserts that the district court
relied on unadjudicated offenses, which was prohibited by U.S.S.G.
§ 4A1.3(a)(2)(E), and erroneously determined that he had a violent criminal


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50894    Document: 00515083852      Page: 2    Date Filed: 08/20/2019


                                  No. 18-50894

history. He also contends that the sentence is substantively unreasonable
because of the factors relied upon by the district court.
      Hall did not raise the issues that he raises on appeal in the district court.
We thus review his argument of procedural unreasonableness for plain error.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Under the
plain-error standard of review, Hall must show a clear or obvious error that
affected his substantial rights. Id. at 392. If he does so, the court has the
discretion to correct the reversible plain error, but it should do so only if it
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
      It is unclear whether the district court imposed a “Guidelines sentence”
or a variance, which is considered a non-Guidelines sentence.               See §
4A1.3(a)(4)(B); United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). In
any event, the court has determined “that for a non-Guidelines sentence, just
as for a Guidelines sentence, it is error for a district court to consider a
defendant’s bare arrest record at sentencing.” United States v. Johnson, 648
F.3d 273, 278 (5th Cir. 2011) (internal quotations and footnote omitted); see
§ 4A1.3(a)(3). However, § 4A1.3 does not preclude a district court that is
contemplating an upward departure from considering reliable information
indicating that a defendant’s criminal history category substantially fails to
represent the seriousness of his criminal history or the likelihood of his
recidivism. See § 4A1.3(a)(1); United States v. Cantu-Dominguez, 898 F.2d
968, 970 (5th Cir. 1990).
      The presentence report (PSR) relied on investigatory reports concerning
Hall’s arrests for two aggravated assaults and an aggravated robbery. The
PSR contained reliable information that showed that Hall had engaged in
assaultive conduct that caused bodily injuries to several individuals. Based on



                                        2
    Case: 18-50894      Document: 00515083852        Page: 3    Date Filed: 08/20/2019


                                    No. 18-50894

these unrebutted facts, there was an adequate evidentiary basis with sufficient
indicia of reliability to support the district court’s consideration of those
unadjudicated offenses along with the other evidence of Hall’s extensive
criminal history in making an upward departure. See United States v. Fuentes,
775 F.3d 213, 220 (5th Cir. 2014); United States v. Harris, 702 F.3d 226, 229-
30 (5th Cir. 2012). Further, there was plausible and reliable evidence in the
record to support the district court’s determination that Hall had a violent
criminal history. See United States v. Pacheco-Alvardo, 782 F.3d 213, 220 (5th
Cir. 2015); Fuentes, 775 F.3d at 220. Therefore, Hall failed to demonstrate that
the district court committed a clear or obvious error in considering the
unadjudicated offenses or in characterizing his criminal history as violent.
Peltier, 505 F.3d 389, 392.
      Hall largely relies on the same arguments made above in contending that
the upward departure resulted in a substantively unreasonable sentence. He
also asserts for the first time that the district court should have considered the
shooting incident occurring two days before his arrest in determining his
sentence. Hall did not object to the substantive reasonableness of the sentence
after it was pronounced by the district court. This court requires an objection
in the district court to the substantive reasonableness of the sentence after it
had been pronounced to preserve the issue for de novo review. See Peltier, 505
F.3d at 391-92. 1 However, Hall’s sentence is substantively reasonable under




      1 The Supreme Court has granted certiorari on the issue whether a formal objection
after pronouncement of sentence is necessary to avoid plain error review in appellate
substantive reasonableness review. Holguin-Hernandez v. United States, 746 F.App’x 403
(5th Cir. 2018), cert. granted, 139 S.Ct. 2666, (June 3, 2019) (No. 18-7739). “Absent an
intervening Supreme Court case overruling prior precedent, we remain bound to follow our
precedent even when the Supreme Court grants certiorari on an issue.” United States v.
Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).


                                           3
    Case: 18-50894    Document: 00515083852      Page: 4   Date Filed: 08/20/2019


                                  No. 18-50894

an abuse-of-discretion standard or plain error standard. Id.; Gall v. United
States, 552 U.S. 38, 51 (2007).
      Whether the sentence was a Guidelines upward departure or a non-
Guidelines variance, the reasonableness of the sentence must be considered
“under the totality of the relevant statutory factors.” United States v. Jones,
444 F.3d 430, 441 (5th Cir. 2006). As discussed above, the district court did not
plainly err in considering Hall’s non-adjudicated offenses that were supported
by reliable evidence and it did not clearly err in determining that Hall had a
violent criminal history.   Contrary to Hall’s argument, the district court
discussed the 18 U.S.C. § 3553(a) factors as they applied to Hall’s case prior to
determining his sentence. The district court provided Hall with a favorable
ruling in deciding not to consider the shooting incident in determining his
sentence.   Hall’s arguments show no plain or clear error resulting in a
substantively unreasonable sentence.       Further, the reasonableness of the
departure is supported by Hall’s extensive criminal history, including his
multiple unscored convictions and pending drug cases, as well as the violent
nature of many of his offenses. The extent of the departure satisfies the
§ 3553(a) factors, particularly Hall’s need for adequate deterrence to protect
the public. Last, the departure is well within the range of departures that have
been upheld by the court. See United States v. Brantley, 537 F.3d at 348-50;
Jones, 444 F.3d at 433. Based on the totality of the circumstances, the 120-
month sentence was not substantively unreasonable and did not constitute
error, plain or otherwise. See Jones, 444 F.3d at 441; Gall, 552 U.S. at 51;
Peltier, 505 F.3d at 392.
      The sentence is AFFIRMED.




                                       4
