United States v. Christopher Morton , 714 F. App'x 419 ( 2018 )

Case: 17-10428 Document: 00514379116 Page: 1 Date Filed: 03/08/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-10428
Fifth Circuit
FILED
Summary Calendar March 8, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
CHRISTOPHER LOUIS MORTON,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-482-1
Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
Christopher Louis Morton appeals the sentence (including 57 months’
imprisonment) imposed following his guilty-plea conviction of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), and 924(a)(2). He
claims the district court erred by assigning a base offense level of 20 under
Guideline § 2K2.1(a)(4)(A), pursuant to his committing his offense subsequent
to sustaining a felony conviction for a crime of violence. Morton contends that
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-10428
prior two-year sentence for attempting to take a weapon from a police officer
did not support application of that offense level because it was treated, with a
prior related four-year sentence for being a felon in possession of a firearm, as
a “single sentence” and received no criminal-history points under Guideline
§ 4A1.1(a)–(c).
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
But, as Morton concedes, he did not raise his challenge to his sentence
in district court; therefore, review is only for plain error. E.g., United States v.
Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, he 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 reversible plain error, but should do so only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.
Guideline § 2K2.1 establishes a base-offense level of 20 if defendant
committed his offense after sustaining a felony conviction for a crime of
violence. U.S.S.G. § 2K2.1(a)(4)(A). Along that line, that offense level may be
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No. 17-10428
based on “only those felony convictions that receive[d] criminal history points
under [Guideline] § 4A1.1(a), (b), or (c).” U.S.S.G. § 2K2.1, cmt. n.10.
Some convictions do not receive criminal history points under
§ 4A1.1(a)–(c) because they are counted as a “single sentence” with another
offense. U.S.S.G. § 4A1.2(a)(2). If convictions are grouped under the “single
sentence” rule, criminal-history points are assessed under Guideline
§ 4A1.2(a)–(c) only for the longest sentence of imprisonment. U.S.S.G.
§ 4A1.2(a)(2). But, a grouped prior sentence that did not receive criminal-
history points under Guideline § 4A1.1(a)–(c) “may serve as a predicate under
. . . guidelines with predicate offenses, if it independently would have received
criminal history points.” U.S.S.G. § 4A1.2, cmt. n.3(A).
Although Morton contends application note 3(A) to Guideline
§ 4A1.2(a)(2) is inapplicable to Guideline § 2K2.1, the Sentencing
Commission’s explanation for Amendment 795, which added application note
3(A) to Guideline § 4A1.2, contradicts his assertion. U.S. Sentencing
Guidelines Manual, supp. to app. C, Amend. 795, at 117–19 (2016). In any
event, Morton has cited no binding precedent from this court addressing the
issue. In short, he has not shown the requisite clear or obvious error. United
States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009).
AFFIRMED.
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