United States v. Gann

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 30, 2004
• Docket: 03-11116
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 30, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-11116 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LARRY DEAN GANN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 7:02-CR-13-ALL-R --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Larry Dean Gann pleaded guilty to one count of being a felon

in possession of a firearm, and the district court sentenced him

to 235 months in prison and a five-year term of supervised

release. The district court imposed this sentence to run

consecutively to Gann’s undischarged state sentence.

Gann argues in this appeal that the district court erred in

imposing his federal sentence to run consecutively with his state

sentence. Gann contends that the district court did not give due

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 03-11116 -2-

consideration to the factors set forth in 18 U.S.C. § 3553(a) and

U.S.S.G. § 5G1.3, did not sufficiently enunciate reasons for

imposing the sentence to run consecutively, and erred by not

considering incremental terms of imprisonment.

Gann has shown no error in the district court’s judgment.

The district court’s comments at sentencing evince a sufficient

consideration of the pertinent factors, and it did not abuse its

discretion in imposing Gann’s federal sentence to run

consecutively to his state sentence. See United States v.

Izaguirre-Losoya, 219 F.3d 437, 440 (5th Cir. 2000). These same

comments constitute sufficient compliance with 18 U.S.C.

§ 3553(c) to survive plain error review. See id.; see also

United States v. Everist, __ F.3d __, 2004 WL 885266 at *2 (5th

Cir. 2004). Gann’s argument concerning incremental punishments

is unavailing because the district court was not required to

consider such punishments.

Gann also argues that the district court erred by neglecting

to inquire whether he had read the PSR and discussed it with

counsel, as is required by FED. R. CRIM. P. 32(i)(1)(A). Because

Gann has shown no prejudice arising from this omission, he

concomitantly has failed to show that this omission amounts to

plain error. See United States v. Esparza-Gonzales, 268 F.3d

272, 274 (5th Cir. 2001).

The judgment of the district court is AFFIRMED.