     Case: 19-10103      Document: 00515223936         Page: 1    Date Filed: 12/05/2019




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

                                                                                FILED
                                    No. 19-10103                        December 5, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JEFFREY CHLEO BROWN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-242-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Jeffrey Chleo Brown appeals the sentence imposed following his guilty
plea conviction for one count of wire fraud. The district court varied above the
advisory guidelines range and sentenced him to 40 months in prison.
       Brown contends that the district court violated Federal Rule of Criminal
Procedure 32(i)(3)(B) because the court did not resolve a factual dispute during
the sentencing hearing. He indicates that there was a controverted issue as to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10103     Document: 00515223936     Page: 2   Date Filed: 12/05/2019


                                 No. 19-10103

the accuracy of a victim-impact statement filed by the president of the company
where he used to work. Brown maintains that the district court was required
to resolve whether the statement correctly represented that Brown’s criminal
acts—i.e., using company credit cards to make personal purchases and altering
statements and bills to reflect that the purchases were valid business
expenses—had substantial economic consequences for his employer and nearly
caused its collapse.
      The record reflects that Brown failed to raise the issue of Rule 32(i)(3)(B)
at sentencing and did not otherwise argue that the district court did not resolve
a disputed issue or make relevant findings or rulings. Thus, our review is for
plain error. See United States v. Reyna, 358 F.3d 344, 349-50 (5th Cir. 2004)
(en banc); United States v. Esparza-Gonzales, 268 F.3d 272, 274 (5th Cir. 2001).
      Rule 32(i)(3)(B) states that a district court must, for any disputed portion
of the presentence report or other controverted matter, rule on the dispute or
determine that a ruling is unnecessary because the matter will not affect or be
considered at sentencing. FED. R. CRIM. P. 32(i)(3)(B). We have not previously
addressed whether Rule 32(i)(3)(B) requires resolution of disputed issues that
arise from a victim-impact statement or mandates a ruling as to any contested
issue—whether strictly factual or not—that is contested at sentencing. Given
the lack of controlling authority, and in light of contrary jurisprudence from
other courts, see, e.g., United States v. Petri, 731 F.3d 833, 838-42 (9th Cir.
2013), any error by the district court in not resolving the alleged dispute in
accordance with Rule 32(i)(3)(B) was not clear or obvious. See Puckett v. United
States, 556 U.S. 129, 135 (2009); United States v. Salinas, 480 F.3d 750, 759
(5th Cir. 2007). Moreover, Brown has not shown a reasonable probability that
he would have received a lower sentence but for the district court’s alleged




                                        2
    Case: 19-10103   Document: 00515223936     Page: 3   Date Filed: 12/05/2019


                                No. 19-10103

error. See Puckett, 556 U.S. at 135; United States v. Davis, 602 F.3d 643, 647
(5th Cir. 2010).
      AFFIRMED.




                                      3
