United States v. Carrick Mango

633 F. App'x 257

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 11, 2016
• Docket: 14-51296
• Status: Unpublished

Opinion

PER CURIAM: *

Carrick Mango was convicted of one count of tampering with a witness, victim, or informant and one count of obstruction of justice. Mango appeals his sentence, arguing that the district court erred in assessing his offense level under U.S.S.G. § 2X3.1 pursuant to the cross-reference in § 2J1.2(c)(l).

Specifically, Mango contends that this court’s interpretation of § 2X3.1, comment. (n.1) in United States v. Kimbrough, 536 F.3d 463, 467 (5th Cir.2008), and United States v. Cihak, 137 F.3d 252, 264 (5th Cir.1998), relied on an interpretative rule known as the last antecedent rule and that Kimbrough and Cihak should be reconsidered in light of the Supreme Court’s comments about the last antecedent rule in Paroline v. United States, — U.S. —, 134 S.Ct. 1710, 1721, 188 L.Ed.2d 714 (2014). According to Mango, interpreting § 2X3.1, comment. (n.1) based on the last antecedent rule also conflicts with the rules and policies governing relevant conduct under § 1B1.3.

The district court’s interpretation and application of the Guidelines is ordinarily reviewed de novo. Kimbrough, 536 F.3d at 465. However, plain error review applies here because Mango’s objections in the district court were insufficient to alert the district court of his instant argument regarding Paroline and the last antecedent rule. See United States v. Guerrero-Robledo, 565 F.3d 940, 946 (5th Cir.2009). In any event, his argument fails even under de novo review because Paroline’s comments about the last antecedent rule do not undermine this court’s decisions in Kimbrough and Cihak.

This court explained its interpretation of § 2X3.1, comment. (n.1) in Kimbrough, 536 F.3d at 466-68, and Paroline does not call that interpretation into doubt. Under the rule of orderliness, we follow a prior decision unless there is an intervening change in law; that intervening change must be “unequivocal, not a mere hint” of a likely Supreme Court ruling. United States v. Fields, 777 F.3d 799, 807 (5th Cir.2015)(rejecting argument that Supreme Court’s interpretation of one statute would overrule Fifth Circuit precedent construing a different statute)(internal citations and quotation marks omitted). Kimbrough and Cihak control in this case. See United States v. Lipscomb, 299 F.3d 303, 313 & n. 34 (5th Cir.2002)(“mere ruminations” in Court opinions do not permit overruling of prior precedent by a panel).

AFFIRMED.

* 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.