     Case: 14-51061      Document: 00513176721         Page: 1    Date Filed: 09/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-51061                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               September 1, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

JEFFERY NEWTON SHARP, JR.,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:14-CR-78-1


Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Appellant Jeffrey Newton Sharp, Jr., appeals his conviction and sentence
for possession of a firearm by a convicted felon. We AFFIRM.
                              FACTS AND PROCEEDINGS
       Sharp pleaded not guilty to possession of a firearm by a convicted felon.
At a one-day jury trial, the government adduced the following facts. On March
16, 2014, two police officers from the Waco Police Department responded to a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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call that an individual was trespassing at Highland Cove Apartments. Upon
arriving at the apartments, the officers learned that the suspect was Sharp.
One of the officers, Officer Austin Evans, testified that he had previously told
Sharp to leave the apartments. Upon receiving information that Sharp was in
one of the apartments, Officer Evans’s partner, Officer Adam Brewer, went
around to the back of the apartment building in case Sharp tried to run from
the police. Meanwhile, Officer Evans knocked on the apartment’s door to ask
whether Sharp was there. The resident responded that Sharp was not there,
at which point Officer Evans heard Officer Brewer yell from behind the
building, “[S]top. Police.” Officer Brewer testified that he had been looking in
a different direction when he heard someone running.              Officer Brewer
identified himself as a police officer and told the suspect to stop, at which point
Sharp stopped, put his hands up, and laid on the ground after Officer Brewer
directed him to do so.
      Officer Evans then joined Officer Brewer. The officers handcuffed Sharp
and frisked him for weapons, discovering a medium-sized knife. The officers
then took Sharp to the front of a patrol vehicle, which was in a better-lit area,
to perform a more thorough search. During this second search, the officers
discovered 41 rounds of .380 ammunition. Sharp told them that he did not
have a gun on his person. Instead, the ammunition was in his pocket because
he had gone target shooting with friends. Officer Evans then arrested Sharp
for criminal trespass. The officers performed a search of the apartment where
they suspected he had been staying, but they were unable to find a firearm.
Officer Evans then transported Sharp to the McLennan County Jail.
      Deputy Justin Harrison of the McLennan County Sheriff’s Department
was working in the booking area of the jail that day. After Sharp was placed
in a cell, he hit the cell’s intercom button to ask Deputy Harrison a question
about booking. Deputy Harrison testified that he “got[ ] busy doing other
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                                  No. 14-51061
things and did not click off the button.” While the intercom feed was still live,
Deputy Harrison overheard Sharp saying “that Waco PD was so stupid because
they didn’t find the gun that he tossed right beside him.” Deputy Harrison was
unsure if Sharp was talking to an inmate in a different cell or if he was talking
to himself. After Deputy Harrison’s shift ended a short time later, he called
Officer Evans and told him about Sharp’s statement.
      In response, Officers Evans and Brewer returned to the scene to search
for the gun, arriving back at the apartments at least 30 minutes after they had
left it. According to Officer Evans, they “located a .380 firearm with the
magazine a short distance from” where the officers “had initially detained
Jeffrey Sharp.” Specifically, the officers “had detained the defendant . . . on a
ledge. There was a brick wall drop-off and a few feet on the other side of that
drop-off and down is where the firearm was located.” Officer Evans estimated
that the gun was approximately five to six feet from the ledge. The firearm
was collected by a crime scene technician. It was found to be an operable Ruger
LCP 380 that had been made in Prescott, Arizona, so it had traveled across
state lines to reach Texas. It fires .380 ammunition, which is the kind of
ammunition that the officers found on Sharp’s person.
      Sharp and the government stipulated that he had a prior felony
conviction. He did not present any evidence in his defense. He raised a motion
for judgment of acquittal before the jury rendered its verdict. The district court
denied the motion, and the jury convicted Sharp of being a felon in possession
of a firearm.
      A probation officer prepared a presentence investigation report (“PSR”).
The PSR calculated a total offense level of 22, which included an enhancement
for a stolen firearm. It also calculated a Criminal History Category of III. It
therefore calculated a Guidelines imprisonment range of 51 to 63 months. The
PSR noted that “[t]he probation officer has not identified any factors that
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                                      No. 14-51061
would warrant a departure from the applicable sentencing guideline range” or
“any factors under 18 U.S.C. § 3553(a) that may warrant a variance and
imposition of a non-guideline sentence.” Neither the government nor Sharp
objected to the PSR.
       At the sentencing hearing, the court announced that it planned to
“depart upward in this case by two levels” because, “while there’s no specific
victim for the offense of being in possession of a firearm by a convicted felon,
the circumstances involved the association of Mr. Sharp with a special needs
adult of which he took advantage of in many different ways.” By increasing
the offense level by two levels, the imprisonment range became 63 to 78
months. The court then gave Sharp and his counsel an opportunity to respond,
and both asked the court to follow the Guidelines. The court orally imposed an
above-Guidelines sentence of 78 months of incarceration.
       About a week after the sentencing hearing, the court sua sponte vacated
this sentence because it had not given Sharp advance notice of an upward
departure. 1 In this order, the district court stated that it would instead impose
“a term of incarceration of 63 months, which is within the Guideline range.”
The court’s written judgment provided for this sentence of 63 months of
imprisonment.
                                      DISCUSSION
       Sharp challenges his conviction, arguing that there was insufficient
evidence that he possessed a firearm. He also challenges the reasonableness
of his sentence. We deal with each challenge in turn.




       1This order was apparently issued pursuant to Federal Rule of Criminal Procedure
35(a), which provides that, “[w]ithin 14 days after sentencing, the court may correct a
sentence that resulted from arithmetical, technical, or other clear error.” Sharp does not
argue on appeal that the district court lacked authority to vacate the sentence and impose a
new sentence.
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                                         No. 14-51061
A. Challenge to the Conviction
       Sharp first challenges his conviction, arguing that there was insufficient
evidence for the jury to find that he had possessed the firearm that was found
by Officers Evans and Brewer. 2 Sharp preserved this challenge by filing a
motion for judgment of acquittal, so we review the court’s denial of the motion
de novo.      See United States v. Frye, 489 F.3d 201, 207 (5th Cir. 2007).
“Therefore, we determine whether a rational jury could have found the
essential elements of the offense beyond a reasonable doubt.” Id. (internal
quotation marks and alteration omitted). “We review the evidence and the
reasonable inferences which flow therefrom in the light most favorable to the
verdict.” Id. (internal quotation marks omitted).
       Here, a rational jury easily could have found beyond a reasonable doubt
that Sharp actually possessed the firearm before discarding it. As described
above, when Sharp was arrested, .380 caliber ammunition was found on his
person. He told the police that he had the ammunition because he had gone
target shooting with his friends, effectively admitting that he had possessed a
firearm, even if it was no longer in his possession. After he was booked into
the jail, Officer Harrison heard him say that the Waco Police Department had
failed to find a gun that he had “tossed right beside him.” When police officers
returned to the scene, they found a .380 caliber gun a few feet away from where
they had originally apprehended Sharp.                  When viewed in the light most
favorable to the government, the government’s evidence was more than
sufficient for the jury to find beyond a reasonable doubt that Sharp had
possessed the firearm that the police later located. 3


       2  Sharp does not challenge the sufficiency of the evidence as to the other elements of
the offense of conviction.
        3 Sharp also mentions that “the jury was arguably misinformed by the trial judge”

when, in response to a jury question, the court “indicated that no firearms registration is
required by law in Texas.” Sharp did not object to the district court’s instruction to this effect.
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B. Challenges to the Sentence
       We review the reasonableness of a sentence for abuse of discretion.
United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). 4 We
first ask whether the district court “err[ed] procedurally by, for example,
miscalculating or failing to calculate the sentencing range under the
Guidelines, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including an explanation
for any deviation from the Guidelines range.”                   Id.    “If the sentence is
procedurally proper, the court engages in a substantive review based on the
totality of the circumstances.” Id. “[A] sentence within the Guidelines range
is presumed reasonable on appeal.” Id.
       Sharp seems to raise procedural and substantive challenges to his
sentence. His first procedural challenge is based on the district court’s failure
to explain the sentence. 5 A sentence that is within the Sentencing Guidelines


Thus, plain error review applies. Sharp fails to argue that any purported error affected his
substantial rights, so his challenge fails. See Puckett v. United States, 556 U.S. 129, 135
(2009) (providing that, for plain error review, the appellant must show that the error “affected
the appellant’s substantial rights”).
        4 The Government argues that we should review the reasonableness of the sentence

for plain error because Sharp did not object to the sentence. But plain error review does not
apply if Sharp lacked the opportunity to object to the sentence. Fed. R. Crim. P. 51(b) (“If a
party does not have an opportunity to object to a ruling or order, the absence of an objection
does not later prejudice that party.”). Sharp did not have a chance to object to the district
court’s articulation of its reasons for the sentence. In contrast, by requesting only a within-
Guidelines sentence at the sentencing hearing, he arguably forfeited any objection to the
substantive reasonableness of a within-Guidelines sentence. Regardless, because we
conclude that the district court did not abuse its discretion, let alone plainly abuse its
discretion, we need not determine whether he forfeited the issue.
        5 Sharp also “point[s] out that the prosecution never tendered as evidence at the

sentencing hearing any tangible evidence to support the stolen gun enhancement,” which is
“somewhat troubling to [him].” Assuming that Sharp is attempting to challenge the stolen
gun enhancement provided in the PSR, this challenge is meritless. The PSR had an adequate
evidentiary basis because it was based upon police reports that provided that the serial
number of the gun collected at the scene “came back as reported stolen.” Thus, because Sharp
failed to offer evidence rebutting the PSR’s factual assertion that the gun was stolen, the
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generally requires “little explanation.” Mondragon-Santiago, 564 F.3d at 362
(quoting United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)) (internal
quotation marks omitted). More is required, however, “if the parties present
legitimate reasons to depart from the Guidelines.” Id.
       Here, Sharp did not present any reasons to depart from the Guidelines.
He did not object to the PSR or file a sentencing memorandum requesting a
downward variance or downward departure from the Guidelines. Further,
when the district court orally informed Sharp and his counsel that it planned
to apply an upward departure, both responded only that they hoped the court
would impose a within-Guidelines sentence. The order vacating the orally
imposed sentence provided that the court was imposing “a term of
incarceration of 63 months, which is within the Guidelines range.” The order
therefore made it clear that 63 months’ imprisonment was selected because it
was within the Guidelines range. The Statement of Reasons also provided that
the court “adopt[ed] the presentence investigation report without change” and
stated that “[t]he sentence is within an advisory guideline range that is not
greater than 24 months, and the [c]ourt finds no reason to depart.”
       We conclude that the “[c]ircumstances . . . make clear that the judge
rest[ed] his decision upon the Commission’s own reasoning that the Guidelines
sentence is a proper sentence (in terms of § 3553(a) and other congressional
mandates) in the typical case, and that the judge . . . found that the case before
him [was] typical.” Rita v. United States, 551 U.S. 338, 357 (2007). Further,
because the Guidelines range of imprisonment was 51 to 63 months, a range
of less than 24 months, the district court was not required to explain why it


district court was entitled to adopt it as a fact. See United States v. Stalnaker, 571 F.3d 428,
441 (5th Cir. 2009) (“A district court may adopt facts contained in the PSR without further
inquiry if the facts have an adequate evidentiary basis and the defendant does not present
rebuttal evidence.” (quoting United States v. Alford, 142 F.3d 825, 831–32 (5th Cir. 1998)
(internal quotation mark omitted)).
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selected a particular sentence within that range. United States v. Akpan, 407
F.3d 360, 378 (5th Cir. 2005); see also § 3553(c)(1) (providing that district court
shall explain “the reason for imposing a sentence at a particular point within
the range” if the Guidelines “range exceeds 24 months”). We conclude that,
given Sharp’s failure to argue for a downward departure or variance from the
Guidelines, the district court’s explanation of the sentence was sufficient. 6
      Sharp also apparently challenges the district court’s failure to consider
the § 3553(a) sentencing factors when it resentenced him. We assume without
deciding that the district court was required to reconsider the § 3553(a) factors
when it issued a revised judgment under Rule 35(a). Cf. United States v.
Lightfoot, 724 F.3d 593, 598–99 (5th Cir. 2013) (holding that a district court is
not required to reconsider the § 3553(a) factors in resolving a Rule 35(b) motion
to reduce a sentence based on substantial assistance to the government). We
hold that, even assuming that the district court was required to reconsider the
§ 3553(a) factors, it adequately did so here.
      “We afford great deference to sentences within the Guidelines range, and
we ‘infer that the judge has considered all the factors for a fair sentence set
forth in the Guidelines in light of the sentencing considerations set out in
§ 3553(a).’” Mondragon-Santiago, 564 F.3d at 365 (quoting United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008)). Such an inference is
warranted here because the court imposed a within-Guidelines sentence.
Further, although the district court did not explicitly discuss each § 3553(a)
factor, it was not required to do so. United States v. Smith, 440 F.3d 704, 707
(5th Cir. 2006) (holding that a district court “need not engage in robotic
incantations that each statutory [§ 3553(a)] factor has been considered”



      6 Sharp does not challenge the fact that the explanation of the sentence was not
performed “in open court” at the sentencing hearing, as provided in § 3553(c).
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(internal quotation marks omitted)). Moreover, the district court did explicitly
consider some of the factors by imposing a sentence within the Guidelines
range and adopting the PSR. By basing its sentence on the Guidelines, the
court explicitly considered the Guidelines range, the factor contained in
§ 3553(a)(4)(A). And by adopting the PSR, the court adopted statements about
“the nature and circumstances of the offense and the history and
characteristics of the defendant,” thereby explicitly considering another
statutory factor, § 3553(a)(1). We hold that the district court therefore did not
procedurally err by failing to consider the § 3553(a) factors when it resentenced
Sharp.
      The final question is whether Sharp’s sentence was substantively
reasonable. Again, in this circuit, “a sentence within the Guidelines range is
presumed reasonable on appeal.”       Mondragon-Santiago, 564 F.3d at 360.
Sharp does not point to any particular reason why his within-Guidelines, 63-
month sentence was unreasonable. Instead, his appellate brief merely asserts
that “[a] sentence much closer to the properly-calculated lower end of the
guidelines range would have been more than adequate to satisfy the requisite
policy concerns.” “A defendant’s disagreement with the propriety of the
sentence imposed does not suffice to rebut the presumption of reasonableness
that attaches to a within-guidelines sentence.” United States v. Ruiz, 621 F.3d
390, 398 (5th Cir. 2010). Sharp has therefore failed to rebut the presumption
that his sentence was reasonable.
                                 CONCLUSION
      For the foregoing reasons, we AFFIRM.




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