     Case: 13-31177       Document: 00512864115         Page: 1     Date Filed: 12/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 13-31177                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                December 10, 2014
                                                                            Lyle W. Cayce
               Plaintiff – Appellee,                                             Clerk

v.

ROY ELBERT CARLTON,

               Defendant – Appellant.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:12-CR-166-2


Before PRADO, ELROD, and GRAVES, Circuit Judges.

PER CURIAM: *

       A jury convicted Carlton of possessing marijuana while incarcerated in
a federal prison, and the district court sentenced him within the calculated
guidelines range to 27 months of imprisonment. In determining Carlton’s
guidelines range at sentencing, the district court applied the enhancements
found in U.S.S.G. §§ 2D1.1(b)(4) and 3B1.4. On appeal, Carlton contends that
the district court applied these two enhancements in error. Because Carlton



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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waived any challenge to the § 3B1.4 enhancement, and because Carlton
attacks the § 2D1.1(b)(4) enhancement on the basis of a mistake in fact that
could have been cured by raising a proper objection before the district court at
sentencing, we affirm.
                                         I.
      The evidence at trial showed that Carlton’s minor children and their
mother, Whitney Anderson, visited Carlton at his request while he was
incarcerated in federal prison. Anderson had concealed several packages of
marijuana in the younger child’s clothing, as well as in her own, and Carlton
retrieved and ingested some of the packages while the child sat in his lap. The
jury convicted Carlton of possessing contraband in prison, in violation of 18
U.S.C. § 1791(a)(2).
      The presentence report (PSR) recommended that the district court apply
the enhancements found in U.S.S.G. §§ 2D1.1(b)(4) (object of the offense was
distribution in a prison) and 3B1.4 (use or attempted use of a minor). As to the
§ 2D1.1(b)(4) object-was-distribution enhancement, the PSR stated that
according to the government, Anderson testified at trial that she brought the
drugs to Carlton so he could repay a debt to another inmate. Carlton filed
objections to the two enhancements, but at sentencing he expressly conceded
his objection to the § 3B1.4 use-of-a-minor enhancement.
      As to the § 2D1.1(b)(4) enhancement, Carlton argued at the sentencing
hearing that the object of the offense could not be distribution in a prison
because he had been convicted only of possession (as opposed to providing
contraband to another inmate). The government responded that Anderson had
testified at trial that Carlton was going to use the marijuana to “pay off some
sort of debt in prison.” In fact, she did not so testify. Even so, the district court
shared the government’s recollection of Anderson’s testimony and asked
Carlton to address it. Carlton’s attorney responded that “that’s what Ms.
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                                       No. 13-31177
Anderson testified to, but besides her testimony, nothing else has been
provided to prove that fact . . . .”
      The district court ultimately overruled Carlton’s objection to the
§ 2D1.1(b)(4) enhancement, noting that it would have “possibly agree[d]” with
Carlton “absent the affirmative testimony from [Anderson] that [the district
court] believe[d] was unrebutted.” After applying the two above-mentioned
enhancements, 1 the district court sentenced Carlton within the calculated
guidelines range to 27 months of imprisonment. This appeal followed.
                                           II.
      The district court’s factual findings at sentencing are generally reviewed
for clear error, United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), while
legal determinations regarding the interpretation and application of
sentencing guidelines are reviewed de novo. United States v. Mueller, 168 F.3d
186, 189 (5th Cir. 1999). Waived errors, however, are unreviewable, and
forfeited errors are reviewed for plain error. United States v. Rodriguez, 602
F.3d 346, 350–51 (5th Cir. 2010). A defendant forfeits an error by failing to
timely assert a right; waiver, in contrast, occurs when a defendant
intentionally relinquishes a known right. Id. at 351.
                                           III.
                                            A.
      In his objections to the PSR, Carlton argued that the U.S.S.G. § 3B1.4
use-of-a-minor enhancement did not apply because he never took any
affirmative action to involve his child in the offense. According to Carlton, it
was Anderson who chose to hide the marijuana in the minor child’s clothing.
At sentencing, however, Carlton expressly conceded his objection to the § 3B1.4



      1 The § 2D1.1(b)(4) enhancement was applied via the cross-reference provision found
in U.S.S.G. § 2P1.2(c)(1).
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                                  No. 13-31177
enhancement.      Thus, Carlton waived any challenge to the § 3B1.4
enhancement by specifically objecting to the PSR with the same argument he
advances here on appeal, and then expressly withdrawing that objection
during the sentencing hearing. Cf. United States v. Arviso–Mata, 442 F.3d 382,
384 (5th Cir. 2006) (declining to find waiver where there was no evidence “that
counsel knew of the sentencing guidelines issue and that he consciously chose
to forego it”); see also United States v. Martinez, 79 F. App’x 12, 13 (5th Cir.
2003) (per curiam) (holding that a defendant waived an error when he
withdrew his objections to the PSR at sentencing). Waived errors are not
reviewable. Rodriguez, 602 F.3d at 350.
                                        B.
      Carlton mounts a two-pronged attack on the district court’s application
of the U.S.S.G. § 2D1.1(b)(4) object-was-distribution enhancement. First, he
argues that because the jury convicted him of possessing contraband under 18
U.S.C. § 1791(a)(2)—rather than providing contraband to another inmate
under § 1791(a)(1)—the district court was precluded from finding that the
“object of the offense was the distribution of a controlled substance in a prison.”
U.S.S.G. § 2D1.1(b)(4); see also § 2P1.2(c)(1) (cross-reference provision
directing application of the offense level found in § 2D1.1 “[i]f the object of the
offense was the distribution of a controlled substance”). Carlton’s cramped
reading of §§ 2P1.2(c)(1) and 2D1.1(b)(4) does not square with the plain
language of those provisions, which by their terms do not limit “the offense” to
providing contraband under 18 U.S.C. § 1791(a)(1).           We therefore reject
Carlton’s narrow construction of U.S.S.G. §§ 2P1.2(c)(1) and 2D1.1(b)(4).
      Carlton next argues that the district court based its application of the
§ 2D1.1(b)(4) enhancement on a clearly erroneous factual finding; namely, that
Anderson testified at trial that Carlton needed the marijuana to repay a debt
to another inmate.     Because Carlton agreed with this characterization of
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                                  No. 13-31177
Anderson’s testimony at the sentencing hearing, we will apply plain-error
review. Cf. United States v. Fernandez–Cusco, 447 F.3d 382, 384 (5th Cir.
2006) (applying plain-error review “out of an abundance of caution” when the
defendant “did more than fail to object to the . . . enhancement”). As the
government concedes in its brief and the record unambiguously shows,
Anderson never testified that Carlton needed the marijuana to repay a prison
debt.    However, the district court’s error is a mistake in fact as to what
Anderson testified, and the mistake easily could have been cured by bringing
it to the district court’s attention at sentencing.        Under our precedent,
“[q]uestions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error.” United States v.
Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (per curiam); see also, e.g., United States
v. Claiborne, 676 F.3d 434, 438 (5th Cir. 2012) (per curiam) (applying Lopez).
Therefore, Carlton has failed to show that the district court clearly erred in its
application of the § 2D1.1(b)(4) enhancement.
                                       IV.
        Based on the foregoing discussion, we AFFIRM Carlton’s sentence.




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                                 No. 13-31177

EDWARD C. PRADO, Circuit Judge, specially concurring:
      I write separately to reiterate my view that our rule from United States
v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (per curiam)—that factual-finding
mistakes are not cognizable on plain-error review of a criminal sentence—
though binding on this Court, is contrary to the text of Federal Rule of Criminal
Procedure 52(b), Supreme Court precedent, and the practice in every other
circuit. See United States v. Claiborne, 676 F.3d 434, 440 (2012) (Prado, J.,
concurring) (“[T]he court is correct to apply Lopez and foreclose review.
Nonetheless, I believe the Lopez rule to be inferior and think that our review
of [an] unobjected-to enhancement under the Guidelines ought to be for plain
error.”).
            I.   RULE 52(B) AND THE CASES INTERPRETING IT
      Rule 52(b) states: “A plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.” Rule
52(b)’s text makes no distinction between factual and legal errors.         As I
observed in Claiborne, the Supreme Court has stated that “[a] rigid and
undeviating judicially declared practice under which courts of review would
invariably and under all circumstances decline to consider all questions which
had not previously been specifically urged would be out of harmony with . . .
the rules of fundamental justice.” United States v. Olano, 507 U.S. 725, 732
(1993) (alterations in original) (internal quotation marks omitted). Indeed, the
Supreme Court has more recently reiterated that it eschews a rigid approach
to plain-error review. See Puckett v. United States, 556 U.S. 129, 142 (2009)
(“We have emphasized that a per se approach to plain-error review is flawed.”
(internal quotation marks omitted)). It is unsurprising, then, that Fifth Circuit




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cases have not consistently followed the Lopez rule, 1 and that each of the other
circuits reviews these mistakes for plain error. 2
                      II.     APPLICATION IN THIS CASE
      The injustice of the Lopez rule is illustrated by its application in this case.
Here, the trial court clearly erroneously accepted the government’s incorrect
assertion that Carlton’s girlfriend Whitney Anderson testified that Carlton
intended to use the marijuana to pay off a debt to another prisoner, and that
the government’s incorrect assertion was the piece of evidence that tipped the
scale in favor of the two-level sentencing enhancement for intent to distribute.
Thus, in my view, this “error seriously affect[ed] the fairness, integrity, or
public reputation of judicial proceedings.”          See Puckett, 556 U.S. at 135
(internal quotation marks omitted).
A.    Background
      As discussed in the opinion for the Court, the government caught Carlton
attempting to smuggle marijuana into federal prison.                 The Presentence
Investigation Report (PSR) stated: “According to the U.S. Attorney’s Office,
Anderson gave testimony during trial, which indicated that the multiple
balloons of marijuana she brought into USP Pollock were intended to be used
by the defendant to repay a debt to another inmate.”
      On appeal, the government concedes in its brief that, “[i]n fact,
[Anderson] did not say this at trial.” At oral argument, the U.S. Attorney’s




      1  Compare United States v. Akinosho, 285 F. App’x 128, 130 (5th Cir. 2008) (per
curiam) (applying Lopez), with United States v. Stevenson, 97 F. App’x 468, 470 (5th Cir.
2004) (per curiam) (conducting a typical plain-error analysis of a challenge to a factual
finding supporting a sentencing enhancement), and United States v. Huerta, 182 F.3d 361,
366 (5th Cir. 1999) (same).
       2 See Claiborne, 676 F.3d at 442–43 (Prado, J., concurring) (collecting cases).

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Office took responsibility for this error, though the government noted the error
was “also on the court.” 3
       Based on this erroneous information, the PSR recommended a two-level
increase to Carlton’s offense level under U.S.S.G. § 2D1.1(b)(4) because “the
object of the offense was the distribution of a controlled substance in a prison.”
       At sentencing, Carlton did not object to the facts contained in the PSR.
At the hearing, Carlton’s defense lawyer appeared to accept the fact that
Anderson had testified to that effect as he argued there was no legal basis for
the enhancement: “Just – I mean, based simply on her testimony of what he
was going to do with it, I don’t think that’s enough to say that he was going to
distribute it. At the hearing, the government doubled down on the statement
in the PSR and stated that “Ms. Anderson testified” at trial “that the intent of
the narcotics was to go to pay off some sort of debt in prison.”
       The district court overruled Carlton’s objection primarily because of its
erroneous belief that Anderson’s testimony came in and was unrebutted. The
court explained: “Well, I appreciate the argument and I would possibly agree
with [Carlton] absent the affirmative testimony from that witness that I believe
was unrebutted. I didn’t hear—I don’t recall any rebuttal at the trial of that
particular testimony. It’s also documented in the presentence investigation
report.” (emphasis added). Without the sentencing enhancement, Carlton’s
recommended guidelines range would have been eighteen-to-twenty-four
months; whereas, Carlton’s range with the enhancement was twenty-four-to-
thirty months, and he received a twenty-seven-month sentence.




       3Specifically, the attorney for the government stated at oral argument: “I believe the
error was on the government; I’m not going to blame the probation officer.”
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B.    Discussion
      Though we properly apply Lopez under our rule of orderliness, here as in
Claiborne, our failure to review Carlton’s claim may deprive Carlton of months
of liberty because, in my opinion, the district court committed plain error. The
injustice in this case is magnified because, by its own admission, the
government introduced the error.
      The government concedes the first three prongs of plain error. The only
issue is therefore whether the fourth prong is met, and in my view it is. See
Puckett, 556 U.S. at 135 (“[I]f the [first] three prongs are satisfied, the court of
appeals has the discretion to remedy the error—discretion which ought to be
exercised only if the error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” (quoting Olano, 507 U.S. at 736)).
      A sentencing “error seriously affects the fairness, integrity, or public
reputation of judicial proceedings, particularly when the disparity between the
Guidelines’ range applied by the district court and the correctly calculated
range is significant.” United States v. John, 597 F.3d 263, 285–86 (5th Cir.
2010) (emphasis added). The two-level disparity between Carlton’s sentence
and the sentence that he would have received absent the clear error is
“significant” within the meaning of Fifth Circuit case law. See United States
v. Mudekunye, 646 F.3d 281, 286, 291 (5th Cir. 2011) (per curiam) (holding a
two-level sentencing discrepancy was plain error because “[t]he substantial
disparity between the imposed sentence and the applicable Guidelines range
warrants the exercise of our discretion to correct the error”). 4



      4  The government’s argument that the error was invited by the defendant is
unavailing. The record demonstrates that the erroneous fact that infected Carlton’s
sentencing—that Anderson testified that Carlton would use the marijuana to pay a debt—
originated from the government and not from Carlton, as the government conceded at oral
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       The error seriously affects the fairness, integrity, or public reputation of
the judicial proceedings for the additional reason that it was introduced by the
government and allowed to go uncorrected, even after prompting by the district
court. The judge was uncertain whether Anderson’s testimony was rebutted,
and he asked the Assistant U.S. Attorney whether he had a recollection of this
testimony being rebutted.          The Assistant U.S. Attorney responded: “No, I
don’t.”
                                 III.    CONCLUSION
       Therefore, absent Lopez, I would vacate Carlton’s sentence and remand
for resentencing. The trial court could then consider whether this error was in
fact introduced by the government and, if so, under what circumstances. If the
totality of the evidence nonetheless supported the enhancement for intent to
distribute without Anderson’s supposed testimony, then the district court
would be free to reinstate Carlton’s original sentence with the two-level
enhancement. But if not, Carlton would get several months of his life back.
       Taken to its logical extreme, the application of Lopez to this case
demonstrates the fundamental injustice of the Lopez rule. Under Lopez, the
government could fabricate a fact that then ends up in a PSR. If an overworked
appointed defense lawyer does not notice and object, and if the district court



argument. The PSR unequivocally states that the probation officer believed this because the
U.S. Attorney’s Office told her so.
       The government’s reliance on our unpublished decision in United States v. Moreno,
245 F. App’x 399 (5th Cir. 2007) (per curiam) is similarly misplaced. The issue in Moreno
was waiver on appeal, not plain error. In Moreno, the defendant’s sentence was enhanced
under U.S.S.G. § 4B1.4(a) because the district court determined he was a career criminal. Id.
at 402. Moreno did not raise this issue in his original appeal. Id. at 401–02. Thus, this Court
reviewed his second appeal in the wake of Booker for manifest injustice, not plain error:
“Because this issue was not raised in Moreno’s original appeal,” the court explained, “it is
barred under the mandate rule unless . . . the district’s court’s ruling was clearly erroneous
and will result in a manifest injustice.” Id. at 402. Thus, Moreno is inapposite.
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imposes an enhancement based on this fiction, this Court of Appeals is
powerless to correct it. I do not read Rule 52(b), or the Supreme Court cases
interpreting it, this way, and neither do our sister circuits. Although we apply
the correct rule under our rule of orderliness, I write separately to again
respectfully suggest that the rule applied is a bad one.




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