United States v. Jewell, 20-10814

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPer Curiam
PartiesUnited States of America, Plaintiff-Appellee, v. Danny Jewell, Defendant-Appellant.
Decision Date17 August 2021
Docket Number20-10814

United States of America, Plaintiff-Appellee,
v.

Danny Jewell, Defendant-Appellant.

No. 20-10814

United States Court of Appeals, Fifth Circuit

August 17, 2021


Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19-CR-363-1

Before Dennis and Engelhardt, Circuit Judges, and Hicks [*] , Chief District Judge.

Per Curiam [*]

Danny Jewell pleaded guilty, without a plea agreement, to one count of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. Jewell was sentenced to 275 months imprisonment followed by a four-year term of supervised release. Jewell's sentence was ordered to run concurrently with any future sentence imposed in state Case No. DC-F2019-00940 and consecutively with any future sentence imposed in state Case No. F47605, both of which are pending in the 294th Judicial District Court, Johnson County, Texas. Jewell challenges the procedural and substantive reasonableness of his sentence. We affirm.

I.

Jewell was in state custody from 2013, until his release on August 27, 2018.[1] Sometime thereafter, he joined a methamphetamine distribution chain. A methamphetamine supplier named Alfredo Trejo distributed the drug to Jewell, co-defendant Karen Maxwell (Maxwell), a.k.a. Karen Ivey, and others. Notably, Maxwell also received the drug from Mexico through an unidentified source of supply. Maxwell then distributed her supply of methamphetamine to Jewell and other co-defendants. Jewell would then distribute to co-defendant Michael Pipkin (Pipkin). In March 2019, Homeland Security and Drug Enforcement Administration agents initiated an investigation into this distribution ring stemming from Johnson County and other surrounding Texas counties.

From January or February 2019 to August 2019, Jewell completed numerous methamphetamine transactions at his "residence," according to co-defendant Pipkin. On July 17, 2019, Johnson County Sheriff's deputies conducted a controlled buy of methamphetamine from Jewell at a home located at 2023 East Henderson, Lot No. 20, Cleburne, Texas. Jewell was then arrested on September 10, 2019, by Johnson County Sherriff's deputies following a traffic stop.

Jewell was charged with a state offense for the manufacture or delivery of a substance in Penalty Group 1. Shortly thereafter, on October 21, 2019, Jewell, along with seven (7) other co-defendants, was named in a single-count criminal complaint filed in the United States District Court for the Northern District of Texas, Fort Worth Division. Jewell remained in state custody from September 10, 2019, until he was transferred to the custody of the U.S. Marshals Service on November 7, 2019, pursuant to a writ of habeas corpus ad prosequendum. On January 28, 2020, Jewell pleaded guilty, without a plea agreement, to the single-count complaint.

Prior to sentencing, the U.S. Probation Office prepared a Presentence Investigation Report (PSR). Jewell's base offense level of 31 was calculated pursuant to U.S.S.G. § 2D1.1(c)(4) because his offense involved at least 3, 000, but less than 10, 000 kilograms of "Converted Drug Weight" methamphetamine. This calculation included a two-level enhancement for maintaining a premises for the purpose of manufacturing and distributing the methamphetamine. U.S.S.G. § 2D1.1(b)(12). Jewell's offense level was decreased two levels for acceptance of responsibility and assisting authorities. His criminal history category of VI reflected his 13 prior convictions, four of which were felony drug offenses. His guideline range was calculated at 188-235 months imprisonment.

The PSR was then modified by an addendum, that included an increase of two points in his base offense level under U.S.S.G. § 2D1.1(b)(5), because a portion of the methamphetamine possessed and distributed by Jewell was purportedly imported from Mexico. Jewell's new guideline range was raised to 235-293 months. Jewell objected to both enhancements.

At sentencing, the district court overruled Jewell's objections to the enhancements and denied his requests for a downward variance and credit for time served in custody. The court imposed a 275-month term of imprisonment followed by a four-year term of supervised release. The sentence was ordered to run concurrent to any future sentence stemming from Jewell's state arrest on September 10, 2019, and consecutive to any future sentence resulting from Jewell's inevitable parole revocation. The district court determined the sentence was sufficient but not greater than necessary to comply with the purposes of 18 U.S.C. § 3553(a). Jewell timely appealed.

II.

Jewell's appeal is two-fold. First, in a series of four individual assertions, Jewell argues the district court committed reversible procedural error by (1) improperly applying two offense enhancements under U.S.S.G. §§ 2D1.1(b)(5) and (b)(12); (2) failing to address the relevant sentencing factors under 18 U.S.C. § 3553(a); (3) denying Jewell credit for time served in custody pursuant to 18 U.S.C. § 3585(b); and (4) withholding an explanation as to the court's reasoning for concurrent and consecutive sentences. Second, Jewell contends that the sentence is substantively unreasonable.

A district court errs procedurally when it fails to properly calculate the sentence, selects a sentence based on clearly erroneous facts, or fails to adequately explain the sentence imposed. United States v. Duke, 788 F.3d 392, 396 (5th Cir. 2015). However, a procedural error is harmless if the error did not affect the district court's selection of the sentence. United States v. Leontaritis, 977 F.3d 447, 452 (5th Cir. 2020). This is true even in instances where a district court failed to consider the correct guideline range so long as "the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing." Id. (quoting United States v. Ibarra-Luna, 628 F.3d 712, 713-714 (5th Cir. 2010)).

Jewell's procedural error claims can be further categorized into those preserved before the district court and those unpreserved. His preserved objections to the two sentencing enhancements included in the district court's guideline calculation are reviewed de novo and the district court's findings of fact are evaluated for clear error. United States v. Peterson, 977 F.3d 381, 392 (5th Cir. 2020). "The government must prove the facts underlying a sentencing enhancement by a preponderance of the evidence." United States v. Arayatanon, 980 F.3d 444, 452 (5th Cir. 2020). A factual finding which is "plausible in light of the record as a whole" is not clearly erroneous; rather, there is clear error where review of the record results in "a definite and firm conviction that a mistake has been committed." Peterson, 977 F.3d at 396 (quoting United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (per curiam)).

His unpreserved claims-that the district court did not consider all relevant information, nor did it give full explanation for the chosen sentence without credit for time served-are reviewable for plain error, which requires a showing of a clear or obvious error that affected a substantial right and "has a serious effect on the fairness, integrity, or public reputation of judicial proceedings." Id. (quoting United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012)) (internal quotation marks omitted).

We review the substantive reasonableness of Jewell's sentence for abuse of discretion and may presume the sentence is reasonable if it falls within the correctly calculated guideline range. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597 (2007). However, this...

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