United States v. Anthony Freeney ( 2020 )

Case: 19-11178 Document: 00515526136 Page: 1 Date Filed: 08/13/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 19-11178 August 13, 2020
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Anthony Keith Freeney,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-664-1
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
A jury convicted Anthony Keith Freeney of three offenses: (1)
possession of firearms by a felon; (2) possession of a controlled substance
with intent to distribute; and (3) possession of a firearm in furtherance of a
drug-trafficking crime. On each of the first two counts, the district court
*
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opinion should not be published and is not precedent except under the limited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. 19-11178
imposed concurrent 72-month sentences, upwardly varying from the
guidelines range of 51 to 63 months. On the remaining count, the district
court imposed a mandatory consecutive sentence of 60 months under 18
U.S.C. § 924(c)(1)(A)(i), for a total of 132 months of imprisonment.
Aggrieved, Freeney appeals. He contends that the evidence was
insufficient to support the jury’s verdict and that the district court erred in
admitting audiotapes of his jail telephone calls. Freeney also asserts that the
district court’s above-guidelines sentence was substantively unreasonable.
First, Freeney asserts that the evidence was insufficient to support the
jury’s verdict. We review Freeney’s sufficiency challenge for plain error
because he did not preserve it in the district court. See United States v.
Campbell, 775 F.3d 664, 668 (5th Cir. 2014). Under this standard, Freeney
must show (1) a forfeited error (2) that is clear or obvious and (3) that affects
his substantial rights. See United States v. Delgado, 672 F.3d 320, 329 (5th
Cir. 2012) (en banc). If Freeney meets these three requirements, we may
correct the error only if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks and
citation omitted). Given the “obviousness” requirement of the second
prong of the plain-error standard, we reverse only if “the record is devoid of
evidence pointing to guilt or if the evidence is so tenuous that a conviction is
shocking.” Id. at 330–31. (internal quotation marks and citation omitted).
Against the record in this case, Freeney fails to demonstrate either
plain error or insufficiency of the evidence. Freeney stipulated that the
firearms that he was charged with possessing had previously traveled in
interstate commerce. He also stipulated that he had a prior felony conviction
and that, on the date he allegedly possessed the firearms in question, he knew
he had been previously convicted of a felony offense. The evidence at trial
showed that firearms and heroin were found at the residence of Freeney’s
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No. 19-11178
mother, within a room agents described as Freeney’s bedroom. Freeney had
departed the residence shortly before it was searched, and the firearms,
heroin, and items consistent with the distribution of narcotics were found
near a cell phone associated with Freeney. Additionally, Freeney’s jail
telephone calls indicated his knowledge of the firearms found at the
residence, as well as his possession of the heroin. This evidence was
sufficient, under the applicable standard of review, to sustain Freeney’s
convictions for possession of firearms by a felon and possession of a
controlled substance with intent to distribute. See Rehaif v. United States, 139
S. Ct. 2191, 2194 (2019); United States v. Huntsberry, 956 F.3d 270, 279 (5th
Cir. 2020); Delgado, 672 F.3d at 330–31; United States v. Sagaribay, 982 F.2d
906, 912 (5th Cir. 1993).
As for his third count, Freeney contends that the evidence
insufficiently linked the firearms to drug trafficking. But the illegally
possessed firearms were found loaded, operable, and in close proximity to
heroin and other items related to drug distribution. We therefore conclude
that the evidence was sufficient, under the applicable standard of review, to
sustain Freeney’s conviction for possession of a firearm in furtherance of a
drug trafficking crime. See Delgado, 672 F.3d at 330–31; United States v.
Ceballos-Torres, 218 F.3d 409, 414–15 (5th Cir.), as amended on denial of reh’g
en banc, 226 F.3d 651 (5th Cir. 2000).
Next, Freeney challenges the authenticity of the audiotapes of his jail
telephone calls. However, Freeney waived his authentication challenge by
failing to object on this basis in the district court. See United States v. Monkey,
725 F.2d 1007, 1011 n.4 (5th Cir. 1984). Alternatively, Freeney has not shown
plain error regarding the authentication issue. See United States v. Barlow,
568 F.3d 215, 219–20 (5th Cir. 2009).
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Freeney also asserts that the audiotapes’ admission into evidence
violated the Confrontation Clause, the audiotapes were substantially more
prejudicial than probative under Federal Rule of Evidence 403, and they
constituted hearsay under Federal Rule of Evidence 802. But we decline to
address these evidentiary issues because Freeney first raised them in his reply
brief. See United States v. Anderson, 5 F.3d 795, 801 (5th Cir. 1993).
Finally, Freeney contends that his 72-month sentence is substantively
unreasonable. Freeney asserts that the district court failed properly to
balance the sentencing factors of 18 U.S.C. § 3553(a) and instead
overemphasized his criminal history and risk of violence. We review the
substantive reasonableness of above-guidelines sentences for abuse of
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).
Considering the totality of the circumstances and giving appropriate
deference to the district court’s consideration of the § 3553(a) factors, we
cannot conclude that the district court abused its discretion in imposing
Freeney’s sentence. See United States v. Fraga, 704 F.3d 432, 439–41 (5th
Cir. 2013). We have upheld significantly greater variances. See, e.g., United
States v. Key, 599 F.3d 469, 475–76 (5th Cir. 2010) (upholding a 216-month
sentence where the upper limit of the guidelines range was 57 months);
United States v. Smith, 417 F.3d 483, 492–93 (5th Cir. 2005) (affirming a 120-
month sentence where the maximum under the guidelines range was 41
months).
AFFIRMED.
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