United States v. Stephfon Gilford ( 2019 )

Case: 18-11590 Document: 00515180345 Page: 1 Date Filed: 10/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11590
FILED
October 30, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
STEPHFON GILFORD,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-173-2
Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Stephfon Gilford pleaded guilty to maintaining a drug-involved premises
in violation of 21 U.S.C. § 856(a)(1), and the district court sentenced him to 78
months of imprisonment and imposed a three-year term of supervised release.
On appeal, Gilford argues that the district court plainly erred in applying the
U.S.S.G. § 2D1.1(b)(12) enhancement for maintaining a premises for the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11590 Document: 00515180345 Page: 2 Date Filed: 10/30/2019
No. 18-11590
purpose of manufacturing or distributing a controlled substance because the
district court double counted the underlying offense conduct.
Because Gilford did not object to the enhancement in the district court,
we review for plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009). To prevail on plain error review, Gilford must show a forfeited error
that is clear or obvious and that affects his substantial rights. See id. If Gilford
makes such a showing, this court has the discretion to correct the error, but
only if it “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 135 (internal quotation marks, brackets, and
citation omitted). On plain error review, an error is not clear or obvious if it is
subject to reasonable dispute or requires the extension of precedent. Id.
We have “held that double counting is prohibited only if the particular
guidelines at issue forbid it.” United States v. Jones, 145 F.3d 736, 737 (5th
Cir. 1998). Double counting is not prohibited under § 2D1.1, U.S.S.G. § 2D1.8,
and their accompanying commentary. See § 2D1.1; § 2D1.8. In addition, this
circuit has not addressed whether the application of the § 2D1.1(b)(12)
premises enhancement in an § 856(a)(1) case constitutes impermissible double
counting under the Guidelines. Therefore, Gilford raises an issue subject to
reasonable dispute and, thus, it is not clear or obvious error. See Puckett, 556
U.S. at 135.
The judgment of the district court is AFFIRMED.
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