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United States v. Randal Bookout , 693 F. App'x 332 ( 2017 )


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  •      Case: 16-10411      Document: 00514070992         Page: 1    Date Filed: 07/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-10411
Fifth Circuit
FILED
Summary Calendar                          July 13, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk
Plaintiff-Appellee
v.
RANDAL JOSEPH BOOKOUT, also known as Randall Joseph Bookout,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-69-1
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Randal Joseph Bookout was convicted, pursuant to his guilty plea, of
possession with intent to distribute methamphetamine.                  His punishments
included a 210-month term of imprisonment and a $100,000 fine.
For the first time on appeal, Bookout contends that he should have been
awarded a two-level minor role adjustment under U.S.S.G. § 3B1.2(b). Noting
that the Presentence Report (PSR) describes a larger drug distribution scheme,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-10411     Document: 00514070992     Page: 2   Date Filed: 07/13/2017
No. 16-10411
Bookout, relying on changes to the commentary to § 3B1.2 made by
Amendment 794 to the Sentencing Guidelines, asserts that an adjustment was
warranted because the record provides no indication that he planned or
organized the distribution of illegal substances other than obtaining
methamphetamine to support his personal habit and the habits of his friends.
He further contends that a minor role adjustment was appropriate because the
record does not show that he made a profit from his methamphetamine
transactions and that there is no indication that he exercised decision-making
authority.
As Bookout concedes, his failure to object in the district court results in
plain error review. See United States v. Reyna,
    358 F.3d 344
    , 348 (5th Cir.
2004) (en banc). To establish plain error, Bookout must show that the district
court committed a clear or obvious error that affected his substantial rights.
See Puckett v. United States,
    556 U.S. 129
    , 135 (2009). Even if he does so, we
will exercise our discretion to correct the error only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. See
    id. Whether Bookout 
    was a minor or minimal participant under § 3B1.2 is
a factual determination. See United States v. Villanueva,
    408 F.3d 193
    , 203
(5th Cir. 2005). Bookout cannot obtain relief under the applicable plain error
standard because, under our precedent, “[q]uestions of fact capable of
resolution by the district court upon proper objection at sentencing can never
constitute plain error.” United States v. Guerrero,
    5 F.3d 868
    , 871 (5th Cir.
1993) (internal quotation marks and citation omitted); see United States
v. Fierro,
    38 F.3d 761
    , 774 (5th Cir. 1994). Moreover, our review shows that
the record does not support a determination that Bookout was “substantially
less culpable than the average participant in the criminal activity.” § 3B1.2,
2
Case: 16-10411     Document: 00514070992      Page: 3   Date Filed: 07/13/2017
No. 16-10411
comment. (n.3(A)). Bookout has failed to show clear or obvious error. See
    Puckett, 556 U.S. at 135
    .
Bookout also contends, for the first time on appeal, that the district court
erred procedurally and substantively by determining that he had the ability to
pay a fine from the proceeds of a trust fund. We review for plain error. See
United States v. Landerman,
    167 F.3d 895
    , 899 (5th Cir. 1999).
Here, while the PSR noted that Bookout had a negative net worth, it did
not recommend against imposition of a fine, and therefore the PSR did not
trigger a requirement that the district court make express findings on
Bookout’s ability to pay. See United States v. Voda,
    994 F.2d 149
    , 155 n.14 (5th
Cir. 1993); United States v. Matovsky,
    935 F.2d 719
    , 722 (5th Cir. 1991).
Nevertheless, the district court found that Bookout had the ability to pay a fine
on the basis of information in the PSR that showed he is the beneficiary of a
trust fund. Although a defendant may use the PSR as proof of inability to pay,
it is the defendant’s burden to establish an inability to pay a fine, United States
v. Magnuson,
    307 F.3d 333
    , 335 (5th Cir. 2002), and Bookout failed to object to
the district court’s determination that he could pay a fine, nor did he present
any evidence to show that he did not have the present or future ability to pay
a fine based on the trust fund. The record does not support Bookout’s assertion
that the district court erred under United States v. Painter,
    375 F.3d 336
    , 339
(5th Cir. 2004), by considering the affluence of his parents in determining his
sentence. Bookout has not overcome the presumption of reasonableness that
applies to the fine, which was within the guidelines range found at U.S.S.G.
§ 5E1.2(c)(3). See United States v. Pacheco-Alvarado,
    782 F.3d 213
    , 221 (5th
Cir. 2015); United States v. Cooks,
    589 F.3d 173
    , 186 (5th Cir. 2009). Bookout’s
claim fails as he has not shown plain error. See
    Puckett, 556 U.S. at 135
    .
AFFIRMED.
3