United States v. Howard ( 2023 )

Case: 22-50317 Document: 00516859034 Page: 1 Date Filed: 08/15/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50317
Summary Calendar FILED
____________ August 15, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Anthony Deshawn Howard,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:21-CR-85-1
______________________________
Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
Per Curiam: *
Anthony Deshawn Howard pleaded guilty to: three counts of
possession of a controlled substance with intent to distribute, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(C); and one count of possession of a firearm in
furtherance of a drug-trafficking crime, in violation of 18 U.S.C.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50317 Document: 00516859034 Page: 2 Date Filed: 08/15/2023
No. 22-50317
§ 924(c)(1)(A)(i). He was sentenced to, inter alia, 147-months’
imprisonment, three-years’ supervised release, and $2,000 in fines.
Howard first asserts that, due to technical error, his rearraignment
hearing was not recorded and a transcript unavailable. As a result, he insists
there is nothing to show his guilty plea was validly entered. Our court
previously granted the Government’s motion to remand to district court to
reconstruct the record of the rearraignment proceeding. Howard did not
object to that reconstructed record, and the Government asserts he now
concedes his challenge to the absence of a record of the rearraignment
proceeding is moot. In his reply brief, Howard does not dispute the
Government’s assertion. The challenge is moot.
Next, Howard maintains the written factual basis for his plea was
insufficient to establish his guilt on the three drug counts because it does not
show he admitted to knowing: the identity of the substances discovered by
police; or that the substances were controlled substances on the federal drug
schedules.
Because Howard did not raise this issue in district court, review is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Under that standard, Howard must show a forfeited plain error (clear-
or-obvious error, rather than one subject to reasonable dispute) that affected
his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes that showing, we have the discretion to correct the reversible plain
error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id. (citation omitted).
“[E]xamining the entire record for facts supporting the guilty plea
and drawing reasonable inferences from those facts to determine whether the
conduct to which the defendant admits satisfies the elements of the offense
charged”, the record supports the reasonable inference that Howard knew
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the identity of the substances he possessed. United States v. Escajeda, 8 F.4th
423, 426 (5th Cir. 2021); see also McFadden v. United States, 576 U.S. 186, 192
& n.1 (2015) (explaining defendant satisfies § 841(a)(1) knowledge
requirement if he: “knew he possessed a substance listed on the schedules,
even if he did not know which substance it was”; or, “knew the identity of
the substance he possessed”); United States v. Crittenden, 46 F.4th 292, 298–
99 & n.7 (5th Cir. 2022) (en banc) (applying McFadden and explaining
defendant “needed to know only that he possessed a controlled substance”).
Accordingly, Howard fails to show the requisite clear-or-obvious error in the
court’s accepting his guilty plea. E.g., Escajeda, 8 F.4th at 426.
Howard additionally contends the imposition of $2,000 in fines was
unreasonable in the light of his lack of earning capacity and the burden the
fines would place on his dependents. We pretermit a discussion of whether
he sufficiently preserved this issue because, even on review for abuse of
discretion, he has not shown error. E.g., United States v. Pacheco-Alvarado,
782 F.3d 213, 220–21 (5th Cir. 2015).
Because the court adopted the presentence investigation report (PSR)
and imposed a below-Guidelines fine, it was not required to make specific
findings under these circumstances. E.g., United States v. Brantley, 537 F.3d
347, 351–52 (5th Cir. 2008) (explaining when “district court [does] not reject
or depart from the adopted PSR’s recommendation on a fine . . . the court
[is] not required to make specific findings regarding [defendant’s] ability to
pay the fine”). Additionally, Howard fails to overcome the presumption of
reasonableness applicable to the fines. Pacheco-Alvarado, 782 F.3d at 219–20
(“For properly calculated, within-Guidelines sentences, we employ a
presumption of reasonableness, which is rebutted only upon a showing that
the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
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represents a clear error of judgment in balancing sentencing factors.”
(alterations omitted) (citation omitted)).
Finally, Howard asserts it is unclear when he must pay his fines.
Unless a sentencing court specifies otherwise, a fine is to be paid
immediately. See 18 U.S.C. § 3572(d)(1); United States v. Diehl, 848 F.3d
629, 631 (5th Cir. 2017) (stating § 3572(d)(1) establishes default rule
requiring defendant make payment immediately unless district court
specifies otherwise). Howard concedes that, based on the oral sentence, his
fines would be due immediately, but he contends several aspects of the
written judgment suggest he instead is required to pay his fines while
incarcerated or while on supervised release. We disagree that the written
judgment is ambiguous. See United States v. Buck, 470 F. App’x 304, 305 (5th
Cir. 2012) (noting “immediate payment” does not entail “immediate
payment in full”; rather, it requires “payment to the extent that the
defendant can make it in good faith, beginning immediately” (citation
omitted)); see also United States v. Miller, 406 F.3d 323, 328 (5th Cir. 2005)
(noting, in restitution context, “payable immediately” does not require
defendant to “make full restitution at once”).
AFFIRMED.
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