United States v. Jarvis Ross , 582 F. App'x 528 ( 2014 )

Case: 12-11021 Document: 00512796596 Page: 1 Date Filed: 10/08/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 8, 2014
No. 12-11021
Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JARVIS DUPREE ROSS, also known as Dookie, also known as Dapree Dollars,
also known as Fifty; CHARLES RUNNELS, also known as Junior; ANTONYO
REECE, also known as Seven; TONY R. HEWITT, also known as Priceless T,
Defendants-Appellants
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:08-CR-167-3
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jarvis Dupree Ross, Charles Runnels, Antonyo Reece, and Tony
R. Hewitt appeal the sentences they received during their resentencing
proceedings. These defendants were convicted by a jury of armed robbery,
conspiracy to commit armed robbery, possession of firearms during and in
relation to violent crimes, possession of a firearm by a convicted felon,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 12-11021
kidnaping, and assault on a federal officer. Ross, Reece, and Hewitt received
aggregate sentences of 3425, 1080, and 3660 months in prison, respectively.
Pursuant to 18 U.S.C. § 3559(c)(1)(A)(i), Runnels received 25 life sentences, 12
of which were ordered to run consecutively, and a 120-month sentence for a
felon-in-possession-of-a-firearm conviction.
In his sole ground for relief, Runnels argues that the imposition of the
mandatory life sentences violated Alleyne v. United States, 133 S. Ct. 2151
(2013), because the enhanced minimum sentence was not based upon facts
found by the jury. Because he did not raise this argument in the district court,
we review for plain error. See United States v. Salazar, 542 F.3d 139, 147 (5th
Cir. 2008). Under this standard, Runnels must show a forfeited error that is
clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
Runnels has not made the requisite showing. Alleyne does not require a jury
to make findings about the existence of prior convictions or to their nature as
“serious violent felonies” under § 3559(c)(2)(F). See Alleyne, 133 S. Ct. at 2160
n.1. Additionally, Runnels has made no showing that his instant offenses
would not constitute “serious violent felonies” for the purposes of § 3559(c). See
§ 3559(c)(2)(F).
Hewitt complains that the district court should have awarded him a
reduction for acceptance of responsibility based on his willingness to cooperate
with the Government, the Government’s refusal to offer him a plea agreement,
and the meritless nature of some of the original charges brought by the
Government. The district court determined that under the mandate rule, it
could not consider such a reduction because it was not necessitated by the
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reasons for the remand. See United States v. Hamilton, 440 F.3d 693, 697 (5th
Cir. 2006). Hewitt does not challenge the applicability of the mandate rule,
and thus the claim is abandoned. See United States v. Thibodeaux, 211 F.3d
910, 912 (5th Cir. 2000).
Ross, Reece, and Hewitt assert that the district court committed
procedural error by failing to take into account their post-incarceration
rehabilitation, as authorized by Pepper v. United States, 131 S. Ct. 1229, 1241
(2011). In imposing a sentence, a district court may not commit a “significant
procedural error,” such as failing to consider the 18 U.S.C. § 3553(a) factors.
Gall v. United States, 552 U.S. 38, 51 (2007). The record reflects that the
district court specifically stated that it was taking into account each
defendant’s rehabilitation in fashioning the sentence.
In addition, Ross, Reece, and Hewitt also assert that their sentences are
substantively unreasonable because the district court gave insufficient weight
to their post-incarceration efforts; Hewitt also contends that the court should
have given greater consideration to his troubled and difficult childhood.
Although the defendants placed various favorable factors before the court, they
did not object after their sentences were imposed. We have held that a
defendant’s failure to object at sentencing to the reasonableness of his sentence
triggers plain error review. See United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007). Even if we reviewed for an abuse of discretion, however, the
arguments are unavailing. See Gall, 552 U.S. at 51 (stating that the
substantive reasonableness of a sentence is reviewed for abuse of discretion).
The defendants’ sentences are within the applicable guidelines ranges
and are presumed reasonable. See United States v. Rashad, 687 F.3d 637, 644
(5th Cir. 2012); 18 U.S.C. § 924(c)(1)(A)(i), (C)(i), (D)(i); U.S.S.G §§ 5G1.1(a),
5G1.2(a), (d). Their general disagreement with the propriety of their sentences
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and the district court’s weighing of the § 3553(a) factors is insufficient to rebut
the presumption of reasonableness that attaches to a within-guidelines
sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Ross, Reece,
and Hewitt have not demonstrated that the district court erred, much less
plainly erred, by sentencing them within the guidelines ranges. See Gall, 552
U.S. at 51; Peltier, 505 F.3d at 391-92.
Accordingly, the judgments of the district court are AFFIRMED.
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