     Case: 10-51064     Document: 00511552459         Page: 1     Date Filed: 07/27/2011




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

                                                                            FILED
                                                                            July 27, 2011
                                     No. 10-51064
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CHRISTOPHER LEE GAITHER,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:09-CR-239-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Christopher Lee Gaither appeals his 84-month sentence, imposed following
his jury-trial conviction of being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). Gaither, sentenced 3 November 2010, two days after the
2010 Sentencing Guidelines Manual became effective, contends the district court
erred: by adding two points to his criminal-history score, pursuant to Guideline
§ 4A1.1(e) (adding two criminal-history points when instant offense committed
within two years of prison release), eliminated from the 2010 Guidelines Manual

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                    No. 10-51064

by Amendment 742; and by sentencing him 21 days after his presentence
investigation report (PSR) had been issued, in violation of Federal Rule of
Criminal Procedure 32(e)(2) (unless waived, PSR to be provided defendant at
least 35 days before sentencing).
      Because Gaither did not object at sentencing to either claimed error, our
review is only for plain error. E.g., United States v. John, 597 F.3d 263, 282 (5th
Cir. 2010). For reversible plain error, defendant must show a clear or obvious
error affecting his substantial rights. E.g., Puckett v. United States, 129 S. Ct.
1423, 1429 (2009). Along that line, to show his substantial rights were affected,
defendant must “show a reasonable probability that, but for the district court’s
misapplication of the Guidelines, he would have received a lesser sentence”.
United States v. Villegas, 404 F.3d 355, 364-65 (5th Cir. 2005). (As noted
recently, our court has not fully resolved whether a different substantial-rights
standard also remains in effect, i.e., “if the case were remanded, the trial judge
could reinstate the same sentence”. United States v. Davis, 602 F.3d 643, 647
n.6 (5th Cir. 2010) (quoting United States v. Ravitch, 128 F.3d 865, 869 (5th Cir.
1997)).) Even if defendant makes that showing, our court retains discretion to
correct the error and, generally, will do so only “if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings”. Id. (citation and
internal quotation marks omitted). Our court’s discretion is “applied on a
case-specific and fact-intensive basis”. Id. at 1433.
      Assessing “recency” points under Guideline § 4A1.1(e) constituted a clear
or obvious error because that section was no longer in effect at the time of
sentencing.    U.S.S.G. supp. app. C, amend. 742 (1 Nov. 2010); U.S.S.G.
§ 1B1.11(a); United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) (“A
sentencing court must apply the version of the sentencing guidelines effective at
the time of sentencing unless application of that version would violate the Ex
Post Facto Clause of the Constitution.”); see also United States v. Blocker, 612



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                                  No. 10-51064

F.3d 413, 416 (5th Cir.) (district court plainly erred in calculating defendant’s
criminal-history score), cert. denied, 131 S. Ct. 623 (2010).
      This erroneous assessment resulted in an advisory sentencing range of 77
to 96 months’ imprisonment; without that error, the range would have been 63
to 78 months. At sentencing, Gaither requested a bottom-of-the-Guidelines
sentence; the Government requested a top-of-the Guidelines sentence. Because
the court gave him a middle-of-the-Guidelines sentence, exceeding the overlap
between the correct and incorrect Guideline ranges, Gaither contends he has
shown his substantial rights were affected. Although the imposed 84-month
sentence is six months greater than the top of the correct advisory range,
Gaither has failed to show that his substantial rights were affected. See United
States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005) (defendant bears burden of
showing error affected substantial rights).
      Even if Gaither had done so, this is not an instance meriting our exercising
our discretion to remand for resentencing. The record shows: an offense
involving domestic violence, drugs, and a firearm; a leadership role within a
violent gang; and pending charges for possessing a deadly weapon while in
prison. Thus, the facts of this action do not “warrant remediation”. United
States v. Calverley, 37 F.3d 160, 164 (5th Cir. 1994) (en banc), abrogated on
other grounds by United States v. Dupre, 117 F.3d 810, 817 (5th Cir. 1997).
      For his second contention—35 days had not expired between the issuance
of PSR and sentencing—Gaither has also failed to show reversible plain error.
Rule 32(e)(2) provides: “The probation officer must give the presentence report
to the defendant . . . at least 35 days before sentencing unless the defendant
waives this minimum period”.        The error was clear or obvious because
sentencing was held 21 days following issuance of the PSR.
      Gaither’s only basis for urging his substantial rights were affected is that,
had he had the requisite 35 days, “[i]t is fair to assume” the probation officer
would have realized recency points could not be included under the 2010

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                                   No. 10-51064

Guidelines. Gaither has failed to show his substantial rights were affected. In
addition to not challenging or expressing concern with his sentencing timeline,
Gaither has not shown he was unprepared for his sentencing or that the
shortened period otherwise resulted in prejudice to him, such as receiving a
higher sentence. See Mares 402 F.3d at 521 (“[I]f it is equally plausible that the
error worked in favor of the defense, the defendant loses; if the effect of the error
is uncertain so that we do not know which, if either, side it helped the defendant
loses”. (quoting United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.
2005))).
      In the alternative, on this record, Gaither’s claimed lack of sufficient notice
does not merit the exercise of our discretion and remanding for resentencing.
See also United States v. Herrera, 395 F. App’x 148, 149 (5th Cir. 2010)
(probation officer’s failure to furnish defendant with PSR within 35 days of
sentencing not plain error).
      AFFIRMED.




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