United States v. David Underwood , 637 F. App'x 155 ( 2016 )

Case: 14-11378 Document: 00513388104 Page: 1 Date Filed: 02/19/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-11378
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 19, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
DAVID WAYNE UNDERWOOD,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CR-78-25
Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
David Wayne Underwood pleaded guilty to conspiracy to possess, with
intent to distribute, methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), and 846. Sentenced within the advisory sentencing range for the
Sentencing Guidelines to 235 months’ imprisonment, Underwood asserts: his
sentence is substantively unreasonable because it is greater than necessary to
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-11378 Document: 00513388104 Page: 2 Date Filed: 02/19/2016
No. 14-11378
achieve the sentencing goals of 18 U.S.C. § 3553(a) (sentencing factors),
particularly the need to provide adequate deterrence and to protect the public.
Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). But,
because Underwood did not raise in district court the issue presented here,
review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537,
546 (5th Cir. 2012). Under that standard, Underwood must show a forfeited
plain (clear or obvious) error that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion
to correct the error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
At sentencing, after considering Underwood’s mitigation contentions and
the § 3553(a) factors, the court concluded a sentence at the low end of the
Guidelines sentencing range was appropriate. Underwood has not shown the
court: failed to give proper weight to any particular § 3553(a) factor; gave
significant weight to an improper or irrelevant factor; or otherwise committed
a “clear error of judgment in balancing sentencing factors”. United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Along that line, the record does not
support Underwood’s assertion that the court was influenced by his association
with the Aryan Brotherhood. His contentions amount to an impermissible
request to reweigh the § 3553(a) factors. See Gall, 552 U.S. at 51. In short, he
fails to show the requisite clear-or-obvious error.
AFFIRMED.
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