United States v. Wagner ( 2023 )

Case: 22-60599 Document: 00516817072 Page: 1 Date Filed: 07/11/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
July 11, 2023
No. 22-60599
Summary Calendar Lyle W. Cayce
Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Jasper Michael Wagner,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:22-CR-70-1
______________________________
Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam:*
Jasper Michael Wagner pleaded guilty to one count of bank robbery in
violation of 18 U.S.C. § 2113(a). The district court sentenced Wagner to the
statutory maximum sentence of 240 months in prison, which was above the
advisory guidelines range of 151 to 188 months of imprisonment. On appeal,
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60599 Document: 00516817072 Page: 2 Date Filed: 07/11/2023
No. 22-60599
Wagner asserts that the district court imposed a procedurally and
substantively unreasonable sentence and violated the Sixth Amendment.
First, Wagner argues that the district court imposed a procedurally
unreasonable sentence by both failing to adequately articulate its reasons for
imposing an above-guidelines sentence and improperly relying on judge-
found facts. Because Wagner did not object to his sentence on these bases,
we review for plain error. See United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009).
To ensure that the sentence is procedurally reasonable, the district
court is required to articulate the specific reasons for imposing an above-
guidelines sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The
stated reasons should be “fact-specific and consistent with the sentencing
factors enumerated in [18 U.S.C. §] 3553(a).” United States v. Smith, 440
F.3d 704, 707 (5th Cir. 2006). The record demonstrates that the district
court adequately articulated its consideration of the § 3553(a) factors before
imposing the above-guidelines sentence. See id. at 707-08.
Next, a sentence is procedurally unreasonable if the district court
imposed the sentence based on clearly erroneous facts. See Gall, 552 U.S. at
51. The district court must “determine its factual findings at sentencing by
a preponderance of the relevant and sufficiently reliable evidence.” United
States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013); see United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005). The district court did not err by inferring
from the presentence report (PSR) that bank employees were traumatized by
Wagner’s many bank robberies because the underlying facts were established
by a preponderance of the evidence and had sufficient indicia of reliability.
See Mares, 402 F.3d at 519. Based on the foregoing, the sentence was
procedurally reasonable, and Wagner has shown no error, plain or otherwise.
See Mondragon-Santiago, 564 F.3d at 361.
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Case: 22-60599 Document: 00516817072 Page: 3 Date Filed: 07/11/2023
No. 22-60599
Second, Wagner contends that his sentence was substantively
unreasonable because the district court did not properly weigh the § 3553(a)
factors. Because this challenge was preserved, we review for abuse of
discretion. See Gall, 552 U.S. at 51. Before imposing the sentence, the
district court evaluated the facts and criminal history set forth in the PSR,
reviewed the written arguments of the Government and defense counsel,
considered the letter of support from Wagner’s sister, listened to Wagner’s
in-court apology and stated intentions during incarceration, heard arguments
from counsel, and confirmed that it had considered the sentencing factors in
§ 3553(a). There is no indication that an important factor was overlooked,
that an improper factor was given significant weight, or that the imposed
sentence suggests a clear error of judgment in the court’s balancing of the
factors. See Smith, 440 F.3d at 708. We will not reweigh the sentencing
factors and substitute our judgment for that of the district court, as Wagner
requests. See United States v. Hernandez, 876 F.3d 161, 167 (5th Cir. 2017).
Finally, Wagner asserts that the district court’s consideration of
judge-found facts violated the Sixth Amendment. We have explicitly
“foreclosed as-applied Sixth Amendment challenges to sentences within the
statutory maximum that are reasonable only if based on judge-found facts.”
United States v. Hernandez, 633 F.3d 370, 374 (5th Cir. 2011). As previously
discussed, the district court’s inference that bank employees were
traumatized by Wagner’s many bank robberies was supported by a
preponderance of the evidence. See Mares, 402 F.3d at 519. Moreover,
Wagner was sentenced to the statutory maximum of 240 months of
imprisonment. See § 2113(a). Accordingly, the district court was entitled to
engage in judicial fact-finding, no constitutional violation occurred, and there
was no error, plain or otherwise. See Hernandez, 633 F.3d at 374.
AFFIRMED.
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