United States v. Gann ( 2004 )

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.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:02-CR-13-ALL-R
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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that this opinion should not be published and is not precedent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.