     Case: 18-10985      Document: 00514978592         Page: 1    Date Filed: 05/31/2019




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

                                                                                 FILED
                                    No. 18-10985                             May 31, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES EARL NUNLEY, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-133-1


Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
       James Earl Nunley, Jr., pleaded guilty to possession of a firearm by a
felon in violation of 18 U.S.C. § 922(g)(1). He appeals his above-guidelines
sentence of 90 months of imprisonment that was ordered to run consecutively
to a state probation revocation sentence and any sentences arising from his
pending state charges for possession of a controlled substance and child
abandonment or endangerment.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10985     Document: 00514978592      Page: 2   Date Filed: 05/31/2019


                                  No. 18-10985

      First, Nunley argues that the district court plainly erred under U.S.S.G.
§ 5G1.3(c) when it ordered his sentence to run consecutively to any sentences
in his pending state cases despite recognizing those state crimes as relevant
conduct. Because Nunley did not object in the district court, we review for
plain error only. See Puckett v. United States, 556 U.S. 129, 135 (2009). To
succeed under this standard, Nunley must show a forfeited and clear or obvious
error that affects his substantial rights. See id. If he makes this showing, this
court has the discretion to correct the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
       Federal courts generally have discretion to order that the sentences they
impose will run concurrently with or consecutively to other state sentences
that are anticipated but not yet imposed. See Setser v. United States, 132 S.
Ct. 1463, 1468–69 (2012). Exercise of that discretion, however, is predicated
on the court’s consideration of the factors listed in 18 U.S.C. § 3553(a),
including any applicable guidelines or policy statements issued by the
Sentencing Commission. See 18 U.S.C. § 3584(b).
      The record does not establish that the district court found the state
charges were relevant conduct to Nunley’s federal offense, and nothing
indicates that the district court believed that the status of the pending state
charges either compelled a consecutive sentence or forbade a concurrent
sentence. Because the finding of relevant conduct was a factual issue that
could have been resolved if Nunley had raised it properly in the district court,
he cannot succeed on plain error review. See United States v. Illies, 805 F.3d
607, 609 (5th Cir. 2015).
      Second, Nunley argues that the district court plainly erred in classifying
his Texas conviction for aggravated robbery as a crime of violence under
U.S.S.G. § 4B1.2. However, as he concedes, that argument is foreclosed by this



                                        2
    Case: 18-10985      Document: 00514978592        Page: 3    Date Filed: 05/31/2019


                                    No. 18-10985

court’s holding in United States v. Santiesteban-Hernandez, 469 F.3d 376, 379–
81 (5th Cir. 2006), overruled on other grounds by United States v. Rodriguez,
711 F.3d 541, 547-63 (5th Cir. 2013) (en banc).      1


      The judgment of the district court is AFFIRMED.




      1 Rodriguez was abrogated on other grounds by Esquivel-Quintana v. Sessions, 137 S.
Ct. 1562, 1568 (2017).


                                           3
