United States v. Flournoy

Case: 22-50581 Document: 00516873378 Page: 1 Date Filed: 08/25/2023

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit No. 22-50581 Summary Calendar FILED ____________ August 25, 2023

Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee, versus

William Thomas Flournoy,

Defendant—Appellant, consolidated with _____________ No. 22-50582 _____________

United States of America,

Plaintiff—Appellee, versus

William Flournoy,

Defendant—Appellant.

Case: 22-50581 Document: 00516873378 Page: 2 Date Filed: 08/25/2023

No. 22-50581 c/w No. 22-50582

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Appeals from the United States District Court for the Western District of Texas USDC Nos. 7:14-CR-216-1, 7:22-CR-24-1

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Before Higginbotham, Stewart, and Southwick, Circuit Judges.

Per Curiam: *

William Thomas Flournoy appeals the sentence imposed following his guilty plea conviction for possession with intent to distribute five grams or more of actual methamphetamine, as well as the judgment revoking his supervised release for a prior offense. He has not briefed, and has therefore abandoned, any challenge to the revocation of supervised release or to the revocation sentence. See United States v. Reagan, 596 F.3d 251, 254–55 (5th Cir. 2010).

Flournoy’s sole argument on appeal is that the district court erred by declining to apply a minor role adjustment under U.S.S.G. § 3B1.2(b) when determining the sentence for this conviction. In general, the district court’s interpretation or application of Section 3B1.2 is reviewed de novo, and its factual findings are reviewed for clear error. United States v. Torres- Hernandez, 843 F.3d 203, 207 (5th Cir. 2016); see United States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995) (holding that whether a defendant is a minor participant is a factual finding reviewed for clear error). “A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.” United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).

First, contrary to Flournoy’s suggestion, the district court did not deny him a minor role adjustment because it believed it lacked the authority

Case: 22-50581 Document: 00516873378 Page: 3 Date Filed: 08/25/2023

No. 22-50581 c/w No. 22-50582 to do so. Instead, after consideration of all facts and legal arguments, the court deemed Flournoy’s contentions to be unpersuasive. See United States v. Garcia, 655 F.3d 426, 431–32 (5th Cir. 2011).

The record reflects that Flournoy personally sold methamphetamine out of his residence on three occasions, obtained approximately four to five ounces of methamphetamine over the course of the preceding months, and had drug-packaging paraphernalia as well as 20.7 grams of methamphetamine in his bedroom. Based on this evidence, the district court could plausibly conclude that Flournoy was not “merely peripheral to the advancement of illegal activity.” Burton v. United States, 237 F.3d 490, 504 (5th Cir. 2000). Therefore, the district court did not clearly err in declining to apply a minor role adjustment under Section 3B1.2(b). See United States v. Castro, 843 F.3d 608, 612–14 (5th Cir. 2016); United States v. Gomez-Valle, 828 F.3d 324, 331 (5th Cir. 2016).

The district court’s judgments are AFFIRMED.