United States v. Seneca

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 29, 2023
• Docket: 23-30075
• Status: Unpublished

Opinion

Case: 23-30075 Document: 00516983333 Page: 1 Date Filed: 11/29/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED November 29, 2023 No. 23-30075 Summary Calendar Lyle W. Cayce ____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Chance Joseph Seneca,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:21-CR-43-1 ______________________________

Before Barksdale, Graves, and Oldham, Circuit Judges. Per Curiam: * Chance Joseph Seneca presents two challenges to his 509-months’- imprisonment sentence imposed after his guilty-plea conviction for kidnapping, in violation of 18 U.S.C. § 1201: the court erred in applying a Guideline § 3A1.1(a) enhancement (“intentionally selected . . . victim” because of actual or perceived characteristics, including gender or sexual

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-30075 Document: 00516983333 Page: 2 Date Filed: 11/29/2023

No. 23-30075

orientation) because he harbored no hatred or animus toward a person’s gender or sexual orientation and, in the alternative, because there is insufficient evidence he intentionally selected a victim based on such orientation; and his above-Guidelines sentence is substantively unreasonable. Although post-Booker, the Sentencing Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 (2007). If no such procedural error exists, a properly-preserved objection to an ultimate sentence, as in this instance, is reviewed for substantive reasonableness under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Seneca’s procedural challenges are unavailing because the Government shows that, even if Guideline § 3A1.1(a) was applied in error, the error was harmless. As Seneca states correctly, “it is not enough for the district court to say the same sentence would have been imposed but for the error”. United States v. Tanksley, 848 F.3d 347, 353 (5th Cir. 2017). Here, the court considered the applicable Guidelines sentencing range both with and without the challenged enhancement and affirmed it would give the same sentence either way. See United States v. Guzman-Rendon, 864 F.3d 409, 411 (5th Cir. 2017) (explaining harmless error is shown when “the district court considered both ranges (the one now found incorrect and the one now deemed correct) and explained that it would give the same sentence either way”).

2 Case: 23-30075 Document: 00516983333 Page: 3 Date Filed: 11/29/2023

In asserting his sentence is substantively unreasonable, Seneca claims the court: overlooked important mitigating evidence; and the factors it invoked do not justify its upward variance. The court reviewed Seneca’s sentencing memorandum and his objections to the presentence investigation report, listened to his statement and the contentions of his counsel at sentencing, and acknowledged the presence of mitigating factors. The court decided, however, countervailing factors made its sentence appropriate. Seneca does not show the sentence failed to “account for a factor that should have received significant weight”. United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Even if our court agreed with Seneca that the court should have given greater weight to mitigating factors, this “is not a sufficient ground for reversal”. United States v. Malone, 828 F.3d 331, 342 (5th Cir. 2016). Nor was it error for the court to “rely upon factors already incorporated by the Guidelines to support a non- Guidelines sentence”. United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008). AFFIRMED.