United States v. Hungerford ( 2022 )

Case: 21-50278 Document: 00516163616 Page: 1 Date Filed: 01/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 12, 2022
No. 21-50278
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Brandon Hungerford,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-320-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Brandon Hungerford challenges the 105-month sentence that
followed his guilty plea to possession with intent to distribute five grams or
more of actual methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B). Specifically, he argues that (1) the written judgment conflicts with
the district court’s oral pronouncement, and (2) the district court erred by
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-50278
failing to order that his federal sentence run concurrently with his then-
anticipated state sentences, pursuant to U.S.S.G. § 5G1.3(c).
Neither argument need detain us long. First, as evidenced by the
United States’ concession, it is beyond dispute that the written judgment
fails to acknowledge that Hungerford’s sentence was to run concurrently
with any state sentence imposed for evading arrest or detention with a
vehicle. Legion precedent counsels that the oral pronouncement controls in
situations like this. See, e.g., United States v. Bigelow, 462 F.3d 378, 381 (5th
Cir. 2006). A limited remand to remedy the conflict is therefore justified.
See United States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006).
Second, we disagree with Hungerford’s belief that the district court
erred in its application of U.S.S.G. § 5G1.3. Article III courts have discretion
to order that federal sentences run concurrently or consecutively with their
state counterparts. See Setser v. United States, 566 U.S. 231, 235–37 (2012);
see also U.S.S.G. § 5G1.3. As the Sentencing Guidelines make clear,
however, concurrent sentencing is typically appropriate where a state
sentence is “based on conduct ‘relevant’ to the federal offense.” United
States v. Ochoa, 977 F.3d 354, 356 (5th Cir. 2020); see also U.S.S.G. § 5G1.3.
The determination of what constitutes relevant conduct is a finding of fact
that we review for clear error. United States v. Barfield, 941 F.3d 757, 761 (5th
Cir. 2019).
Hungerford has not shown that his offenses were either groupable
under U.S.S.G. § 3D1.2(d) or a part of the same course of conduct as the
federal offense for which he was sentenced—possession with intent to
distribute actual methamphetamine. See U.S.S.G. §§ 1B1.3(a)(2), 3D1.2(d);
see also United States v. Horton, 993 F.3d 370, 377 (5th Cir. 2021). Neither
has Hungerford presented any authority for his belief that “it is undeniable”
the state offenses constituted “specific offense characteristics” as
2
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No. 21-50278
contemplated by the Guidelines. See U.S.S.G. § 2D1.1 (enumerating relevant
characteristics); cf. United States v. Brunson, 882 F.2d 151, 157 (5th Cir. 1989)
(rejecting the use of enumerated characteristics from sections outside of the
relevant guideline). See generally U.S.S.G. § 1B1.1(a)(2) (noting that specific
offense characteristics are “contained in the particular guideline in Chapter
Two”). Hungerford has thus failed to demonstrate any clear error.
For these reasons, we AFFIRM the judgment and REMAND to the
district court for the limited purpose of conforming the written judgment to
the oral pronouncement at sentencing.1
1
Furthermore, though Hungerford does not raise the issue himself, the written
judgment contains what appears to be a scrivener’s error. The written judgment references
an “offense date of 10/22/2020” for the then-pending state charges, but the record
indicates that the actual date was October 12, 2020. We are confident that the district court
will consider its authority to remedy this on remand. See generally Fed. R. Crim. P. 36.
3