U.S. Court of Appeals for the Fifth Circuit, 2015

United States v. David Cox

United States v. David Cox
U.S. Court of Appeals for the Fifth Circuit · Decided December 10, 2015 · Stewart, Owen, Costa
624 F. App'x 219

United States v. David Cox

Opinion

PER CURIAM: *

David E. Cox appeals the concurrent 37-month sentences imposed following his guilty plea convictions for two counts of possession of a firearm by a convicted felon. Cox argues that the district court *220 committed procedural error in imposing an upward departure under U.S.S.G. § 4A1.3. Cox’s presentence report calculated a guidelines range using a Category IV criminal history score, and Cox argues that the court failed to explain why a Category V criminal history score was inadequate when it departed to a range based on a Category VI criminal history score. Because Cox did not present this argument to the district court, we review for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).

Section 4A1.3(a)(l) provides that, where “reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that [he] will commit other crimes, an upward departure may be warranted.” Though the district court did not explicitly state its reasons for rejecting a guidelines range with a Category V criminal history score, the court gave extensive reasons that made clear why it found the intermediate Category V score inadequate. Thus, Cox does not show clear or obvious error. See United States v. Zuniga-Per-alta, 442 F.3d 345, 348 n. 2 (5th Cir. 2006). Moreover, even if the error was clear or obvious, Cox does not show a reasonable probability that he would have received a lesser sentence but for the district court’s lack of explanation. See United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010).

The judgment of the district court is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *220 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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