Case: 23-60315 Document: 00517030688 Page: 1 Date Filed: 01/11/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-60315 FILED January 11, 2024 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Lucas Smith, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Mississippi USDC No. 3:22-CR-62-1 ______________________________ Before Barksdale, Engelhardt, and Wilson, Circuit Judges.

Per Curiam: * Lucas Smith pleaded guilty to: one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and one count of engaging in a monetary transaction involving criminally derived property, in violation of 18 U.S.C. § 1957. The district court sentenced him to a within-Guidelines 240-months’ sentence.

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

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Smith asserts the district court erred by: imposing a two-level enhancement under Guideline § 2D1.1(b)(2) (“If the defendant used violence, made a credible threat to use violence, or directed the use of violence, increase by 2 levels.”); and failing to adequately consider the 18 U.S.C. § 3553(a) sentencing factors. He also disagrees with the court’s weighing of several of those factors.

Although post-Booker, the Sentencing 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, 46, 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).

First, Smith contends the court erred by applying a two-level enhancement because his statements do not amount to a credible threat of violence. “Application of [Guideline § 2D1.1(b)(2)] is a factual finding reviewable for clear error.” United States v. Dennis, 41 F.4th 732, 744 (5th Cir. 2022), cert. denied, 143 S. Ct. 2616 (2023).

In the light of the testimony at sentencing, including by Smith, the court did not clearly err in finding Smith made a credible threat to use violence against a person or his family. See id.; United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006) (“We will uphold a district court’s factual finding on clear error review so long as the enhancement is plausible in light of the record as a whole.”).

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Second, Smith arguably asserts the court procedurally erred by failing to give “adequate[]” or “meaningful consideration” to the 18 U.S.C. § 3553(a) sentencing factors. See Gall, 552 U.S. at 51 (including “fail[ure] to consider the § 3553(a) factors” as procedural error). Because Smith did not preserve 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, Smith 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).

The record, including the court’s comments based on Smith’s testimony at sentencing, reflects that it adequately evaluated the 18 U.S.C. § 3553(a) sentencing factors. Smith, therefore, fails to show the requisite clear-or-obvious error. See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (“The court, however, need not engage in robotic incantations that each statutory factor has been considered.” (citation omitted)); United States v. Coto-Mendoza, 986 F.3d 583, 585–87 (5th Cir. 2021) (rejecting lack-of- explanation contention under plain-error review); United States v. Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir. 2009) (“[Defendant]’s sentence is within the Guidelines, and he fails to show that an explanation would have changed his sentence.”).

Finally, assuming Smith also, or instead, asserts a substantive- reasonableness challenge to his sentence and has adequately briefed it, he essentially asks our court to reweigh the 18 U.S.C. § 3553(a) sentencing factors and substitute our judgment, which our court will not do. See Gall, 552 U.S. at 51; United States v. Heard, 709 F.3d 413, 435 (5th Cir. 2013)

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(declining to reweigh 18 U.S.C. § 3553(a) sentencing factors on substantive- reasonableness review).

AFFIRMED.