United States v. David Cox

Fifth Circuit

United States v. David Cox

624 F. App'x 219

CourtCourt of Appeals for the Fifth Circuit

DecidedDecember 10, 2015

Docket15-30342

StatusUnpublished

This text of 624 F. App'x 219 (United States v. David Cox) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. David Cox, 624 F. App'x 219 (5th Cir. 2015).

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Opinion

PER CURIAM: *

David E. Cox appeals the concurrent 37-month sentences imposed following his guilty plea convictions for two counts of possession of a firearm by a convicted felon. Cox argues that the district court *220 committed procedural error in imposing an upward departure under U.S.S.G. § 4A1.3. Cox’s presentence report calculated a guidelines range using a Category IV criminal history score, and Cox argues that the court failed to explain why a Category V criminal history score was inadequate when it departed to a range based on a Category VI criminal history score. Because Cox did not present this argument to the district court, we review for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009).

Section 4A1.3(a)(l) provides that, where “reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that [he] will commit other crimes, an upward departure may be warranted.” Though the district court did not explicitly state its reasons for rejecting a guidelines range with a Category V criminal history score, the court gave extensive reasons that made clear why it found the intermediate Category V score inadequate. Thus, Cox does not show clear or obvious error. See United States v. Zuniga-Per-alta, 442 F.3d 345, 348 n. 2 (5th Cir.2006). Moreover, even if the error was clear or obvious, Cox does not show a reasonable probability that he would have received a lesser sentence but for the district court’s lack of explanation. See United States v. Blocker, 612 F.3d 413, 416 (5th Cir.2010).

The judgment of the district court is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *220 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

David E. Cox appeals the concurrent 37-month sentences imposed following his guilty plea convictions for two counts of possession of a firearm by a convicted felon. Cox argues that the district court *220 committed procedural error in imposing an upward departure under U.S.S.G. § 4A1.3. Cox’s presentence report calculated a guidelines range using a Category IV criminal history score, and Cox argues that the court failed to explain why a Category V criminal history score was inadequate when it departed to a range based on a Category VI criminal history score. Because Cox did not present this argument to the district court, we review for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009).

Section 4A1.3(a)(l) provides that, where “reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that [he] will commit other crimes, an upward departure may be warranted.” Though the district court did not explicitly state its reasons for rejecting a guidelines range with a Category V criminal history score, the court gave extensive reasons that made clear why it found the intermediate Category V score inadequate. Thus, Cox does not show clear or obvious error. See United States v. Zuniga-Per-alta, 442 F.3d 345, 348 n. 2 (5th Cir.2006). Moreover, even if the error was clear or obvious, Cox does not show a reasonable probability that he would have received a lesser sentence but for the district court’s lack of explanation. See United States v. Blocker, 612 F.3d 413, 416 (5th Cir.2010).

The judgment of the district court is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *220 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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624 F. App'x 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-cox-ca5-2015.

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