United States of America v. Phillip Shawn Horton

New Orleans, LA - Criminal defense lawyer represented defendant with possession with intent to distribute 500 grams.

Horton pleaded guilty for possession with intent to distribute 500

grams or more of methamphetamine after an investigation into the drug

trafficking activities of Gilbert Martinez, who was responsible for distributing

large quantities of methamphetamine in the San Angelo, Texas area. During

the course of the investigation, Horton was identified as a courier for

Martinez. On or about February 8, 2017, Horton was later pulled over by

officers who seized a firearm and five bags of methamphetamine totaling

1,942 grams from Horton's vehicle. Horton later divulged that he made at

least three other trips for Martinez, but Horton was not formally charged for

the trips and the presentence investigation report (PSR) counted them as

"relevant conduct.” The probation officer calculated Horton's total offense

level at 35 based on the quantity of drugs noted above. Horton received a total

of five criminal history points, based on state offenses for possession of a

controlled substance, terroristic threats, and possession of drug

paraphernalia, establishing a criminal history category of III. Accordingly, his

guidelines sentencing range was 210 to 262 months of imprisonment. The

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PSR also expressly noted that the pending state charges in Green County,

Texas, were "unrelated to the instant offense” and that the "court may

impose the sentences to be served consecutive to the instant offense.”

Horton and the government filed statements adopting the presentence

report.

At the sentencing hearing, the district court adopted the PSR's factual

findings, background data, and guidelines calculations as its own. On the

government's motion, the district court dismissed Horton's conspiracy

count listed in the indictment and proceeded to sentencing on Horton's

possession count.1

After the court asked if the defense had any evidence or

argument, Horton requested a sentence at the bottom of the guidelines range

based on his role in the offense, noting that the facts in the PSR indicated that

he "was essentially a mule” or "gofer” for codefendant Martinez's drug

enterprise. Horton also asked the district court to consider running the

instant sentence concurrently with a state sentence that he was serving at the

time as a result of revocation of supervision for a controlled substance

offense. Horton made this request because the instant offense "occurred

essentially at the same time as the violations that led to the revocation of

supervision . . . and the imposition of that [state] sentence.” Horton also

requested a facility placement and participation in a substance abuse

program.

1

The indictment against Horton included two counts. Count One listed, along with

Horton's co-defendants Gilbert Martinez and Dora Elia Gaona, the offense of "conspiracy

to distribute and possess with intent to distribute 500 grams or more of

methamphetamine.” Count Two listed the offense of "possession with intent to distribute

500 grams or more of methamphetamine.” At Horton's sentencing, the government asked

the court to dismiss Count One (conspiracy) and proceed with sentencing on Count Two

(possession). The court granted the motion to proceed on Count Two only.

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Without commenting on Horton's requests, the district court asked if

Horton would like to make a statement. Horton declined. The district court

sentenced Horton to 262 months of imprisonment and five years of

supervised release with special conditions. The district court did not run the

instant sentence concurrently with any anticipated sentence imposed in

Horton's four pending state charges. The district court stated on the record

its reasons for imposing the sentence as "address[ing] the objectives of

punishment and deterrence” and the supervised release as necessary for

Horton to re-assimilate back into society. After announcing that Horton had

the right to appeal, the district court stated, "You may now stand aside.”

Horton filed a timely notice of appeal.

II. Legal Analysis

Horton re-urges the same arguments as before the remand. There are

two categories of arguments: one based on the district court's failure to

consider relevant conduct in Horton's state convictions, and the other based

on the district court's procedural errors.

With respect to relevant conduct, Horton argues that the district court

erred in failing to consider two prior state convictions as relevant conduct to

the instant offense when assessing criminal history points under U.S.S.G. §§

4A1.1 and 4A1.2; not ordering his sentence to run concurrently with his

undischarged state sentence under U.S.S.G. § 5G1.3(b)(2); and not adjusting

his sentence for time already served on his undischarged state sentence

pursuant to U.S.S.G. § 5G1.3(b)(1). He also maintains that the district court

erred in declining to impose a concurrent sentence with anticipated state

sentences based on relevant conduct pursuant to U.S.S.G. § 5G1.3(c).

With respect to procedural errors, Horton argues that the district

court erred in failing to explain its decision to run the sentence consecutively

to the undischarged state and anticipated state sentences based on relevant

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conduct. He also contends that his sentence was unreasonable because the

district court failed to consider factors in 18 U.S.C. § 3583(c) for a term of

supervised release. Finally, Horton maintains that the district court failed to

adequately explain pursuant to 18 U.S.C. § 3553(c)(1) its reason for imposing

the particular sentence.

A. Relevant Conduct Claims

On appeal, Horton raises for the first time fact questions pertaining to

whether the conduct underlying his state offenses was sufficiently connected

or related to the underlying offense to qualify as relevant conduct under

U.S.S.G. § 1B1.3. See United States v. Nevels, 160 F.3d 226, 229 (5th Cir.

1998) ("The district court's determination of what constitutes relevant

conduct for sentencing purposes is a factual finding.”). In light of Davis, we

must review unpreserved factual arguments for plain error under Federal

Rule of Criminal Procedure 52(b). 140 S. Ct. at 1061. Plain error exists

"when: (1) there was an error; (2) the error was clear and obvious; and (3)

the error affected the defendant's substantial rights.” United States v. GarciaRodriguez, 415 F.3d 452, 454 (5th Cir. 2005). A factual finding "is not clearly

erroneous as long as it is plausible in light of the record as a whole.” United

States v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009). Even then, the court may

exercise its "discretion to notice a forfeited error . . . only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Garcia-Rodriguez, 415 F.3d at 454 (internal quotation marks

and citations omitted).

Relevant conduct includes "all acts and omissions committed, aided,

abetted, counseled, commanded, included, procured, or willfully caused by

the defendant . . . that were part of the same course of conduct or common

scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(1)(A),

(a)(2). Two or more offenses may constitute part of a common scheme or

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plan if they are "substantially connected to each other by at least one

common factor, such as common victims, common accomplices, common

purpose, or similar modus operandi.” § 1B1.3, cmt. (n.5(B)(i)). Offenses that

do not qualify as a common scheme or plan may be considered part of the

same course of conduct "if they are sufficiently connected or related to each

other as to warrant the conclusion that they are part of a single episode, spree,

or ongoing series of offenses.” § 1B1.3, cmt. (n.5(B)(ii)). Relevant factors

include "the degree of similarity of the offenses, the regularity (repetitions)

of the offenses, and the time interval between the offenses.” § 1B1.3, cmt.

(n.5(B)(ii)).

As a threshold matter, we address whether the district court even

made factual findings regarding the state offenses. We "have allowed the

district court to make implicit findings by adopting the PSR,” where "the

findings in the PSR are so clear that the reviewing court is not left to 'secondguess' the basis for the sentencing decision.” United States v. Carreon, 11

F.3d 1225, 1231 (5th Cir. 1994). Here, the PSR made a finding that the

pending state charges were not related to the instant offense, which Horton

does not dispute. The PSR also made clear that the prior state offenses were

not relevant conduct by counting them for purposes of calculating the

criminal history score. See U.S.S.G. § 4A1.2, cmt. (n.1). Accordingly, we

conclude that the district court made the implicit factual finding that the

underlying conduct of Horton's state offenses did not qualify as relevant

conduct.

Horton argues that the relevant conduct to the instant offense should

have included his two prior state convictions, which were (1) possession of

approximately 6.3 grams of methamphetamine, for which he was arrested on

January 19, 2017 and sentenced to six years of imprisonment on May 8, 2018

as a result of revocation of supervision for a controlled substance offense; and

(2) possession of drug paraphernalia, for which he was arrested on October

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30, 2017. He contends that the underlying conduct of these convictions was

part of regular and repetitive conduct as the instant offense and was similar

and in close temporal proximity to it as well. See § 1B1.3, cmt. (n.5(B)(ii)).

While Horton correctly points out that the first offense was committed only

a few weeks before the federal offense, the state offense involved a

substantially smaller quantity of drugs in a very different context—the

underlying conduct of the federal offense encompassed Horton's

participation in drug trafficking activities for Martinez and transportation of

large amounts of methamphetamine between Arizona and Texas,2

whereas

with respect to the state offense, Horton was arrested for a much smaller, and

likely personal,3

amount of methamphetamine after police searched his

person due to his erratic behavior at a Walmart store. Further, the connection

between his second state conviction and the federal offense is even more

attenuated. The underlying conduct of the federal offense was part of a series

of trips from October 2016 to February 2017 to procure large amounts of

methamphetamine for Martinez, whereas the drug paraphernalia possession

offense stemmed from a traffic stop in October 2017 during which no drugs

were found. Because the district court's implicit finding that these two state

offenses were not relevant to the federal offense is plausible in light of the

record as a whole, Horton's arguments related to his prior state convictions

must fail.

2

According to the PSR, Horton reported several trips to Arizona to procure the

following amounts of methamphetamine for Martinez: (1) 12 pounds; (2) 15 pounds; (3) 5

bundles, or 5 pounds; and (4) 12 pounds. The PSR further stated that "Horton is

responsible for 19,958.40 grams [approximately 44 pounds] of methamphetamine and

1,942 grams of "Ice” [d-methamphetamine hydrochloride, with a purity level of 96%].”

3

Horton admitted to regular use of methamphetamine and that he used

methamphetamine weekly from December 2016 to December 2017.

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Additionally, Horton asserts that the relevant conduct to the instant

offense should have included his two anticipated state charges, which were

(1) unlawful carrying of a weapon, for which he was arrested on April 25,

2017; and (2) manufacture/delivery of methamphetamine, for which he was

arrested on December 5, 2017. The weapon charge arose from a traffic stop,

during which a search of his person revealed 51 grams of methamphetamine,

a glass pipe containing residue, and a firearm. The drug charge arose from an

incident in December 2017, during which Horton was stopped for having an

outstanding arrest warrant and a search of his vehicle revealed, inter alia, a

pipe containing white residue and 8.6 grams of methamphetamine that

Horton claimed belonged to him. Though a closer call, the district court's

implicit finding that the pending state charges were not relevant to the federal

offense is also plausible in light of the record as a whole. The pending state

charges involved relatively small amounts of methamphetamine (51 grams,

or approximately 0.11 pounds) compared to the substantial amounts

transported by Horton from October 2016 to February 2017 (ranging from 5

to 15 pounds). The record also suggests that at least some of the

methamphetamine involved in the pending state offenses was for Horton's

personal use. Accordingly, Horton's argument that the district court erred in

declining to concurrently run his sentence with the anticipated state

sentences fails as well.

B. Procedural Claims

Horton also raises procedural arguments regarding the district court's

failure to consider all of the sentencing factors and to adequately explain its

rationale in imposing the sentence. We again reject these challenges.

First, Horton argues that the district court erred by failing to explain

its decision to deny his request to run his federal sentence concurrently with

the undischarged state sentence. We review the district court's

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interpretation and application of the Sentencing Guidelines de novo and its

factual findings for clear error. See United States v. Lawrence, 920 F.3d 331,

334 (5th Cir. 2019). At sentencing, Horton referred to a temporal connection

between the offenses, which, without more, is insufficient to establish a

relevant conduct determination. Cf. United States v. Ortiz, 613 F.3d 550, 558

(5th Cir. 2010) (finding no "distinctive similarities” or "common

accomplices, suppliers, or buyers between the two offenses” even though the

defendant's two drug offenses occurred in the same building). Similarly,

Horton failed to establish a "regularity” of the offense because the first state

offense involved a "relatively small amount” of methamphetamine whereas

the federal offense involved "massive quantities of the drug.” Id. at 558–59.

Given the absence of elaboration on the relevant conduct, either by Horton

or in the PSR, the district court could have reasonably concluded that

Horton's request that it "consider running” the sentence concurrently with

his state sentence implicated the policy statement of § 5G1.3(d), which

provides in relevant part that "[i]n any other case involving an undischarged

term of imprisonment, the sentence for the instant offense may be imposed

to run concurrently, partially concurrently, or consecutively to the prior

undischarged” sentence. See also U.S.S.G. § 5G1.3(b), cmt. (n.2(D))

(providing an example of imposing a concurrent sentence when the state

offense involved the sale of 25 grams of cocaine and the federal offense

involved the sale of 90 grams of cocaine). Accordingly, a finding of clear error

is precluded because we lack a "definite and firm conviction that a mistake

has been committed.” United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir.

2011).

As to the remaining procedural claims, Horton concedes that he did

not object to the adequacy of the explanation in the district court, but he

contends that his failure to do so should not result in plain error review

because, after pronouncing the sentence, the district court told the parties,

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"you may stand aside,” and, thus, Horton did not have a reasonable

opportunity to object. Indeed, we have found that requiring a formal

objection can be futile where the district court was openly hostile towards a

party and continuously interrupted its attempts to formally object. United

States v. Castillo, 430 F.3d 230, 243 (5th Cir. 2005). However, as the

government notes, we have addressed the same "stand aside” comments

before in United States v. Morales, 299 F. App'x 455, 457 (5th Cir. 2008).

There, the defendant's claim was subject to plain error review because the

sentence was imposed in open court, his counsel was present, and the court

never expressed "anger, hostility, or unwillingness to consider a proper

objection.” Id. (emphasis added). Nothing in the record reflects that the

district court gave Horton, or indeed anyone, the impression that a request

for further explanation of the sentence would not be entertained or that any

objection on that basis would have been futile. Accordingly, we apply plain

error review.

Horton argues the district court plainly erred by failing to explain its

decision to run his federal sentence consecutively to his anticipated state

sentences for unlawfully carrying a weapon and manufacturing/delivering

methamphetamine. Even assuming the district court's failure to state the

reasons for running the sentence consecutively was an error that was clear or

obvious, Horton has not shown that the error affected his substantial rights.

Horton's failure-to-explain claim rests on the premise that the state offenses

were relevant conduct and should therefore run concurrently with the

sentence pursuant to U.S.S.G. § 5G1.3(b). We have already rejected his

relevant-conduct argument, so the district court was not required to impose

a concurrent sentence here. See Setser v. United States, 566 U.S. 231, 244

(2012) (holding that the district court has discretion to order a consecutive

sentence to an anticipated state sentence). Further, the court was within its

discretion to impose a consecutive sentence given Horton's criminal history.

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See United States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir. 2000)

(affirming sentence, even though the district court failed to articulate precise

reasons for imposing a consecutive sentence, due to defendant's extensive

criminal history). As such, the sentence imposed was supported by the record

and not contrary to law. The district court's alleged failure to articulate

precise reasons for imposing a consecutive sentence did not impair Horton's

substantial rights.

Next, Horton contends that the district court plainly erred in failing

to articulate its consideration of 18 U.S.C. § 3553(a) factors for terms of

supervised release. See § 18 U.S.C. 3583(c). Horton does not challenge a

specific condition even though the district court imposed several conditions,

including abstention from certain drugs, participation in a drug dependence

treatment program, and participation in a mental health treatment program.

Although district courts have "wide discretion in imposing terms and

conditions of supervised release,” United States v. Paul, 274 F.3d 155, 164

(5th Cir. 2001), the district court must "set forth factual findings to justify

special probation conditions” in terms of the 18 U.S.C. § 3553(a) factors.

United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014). The district court

here stated that imposing the special conditions was necessary to help Horton

with reassimilation, obtaining suitable employment, and maintaining a lawabiding lifestyle. Accordingly, "the record sufficiently supports the special .

. . condition[s] imposed.” United States v. Dean, 940 F.3d 888, 891 (5th Cir.

2019). Horton also has failed to establish the third prong of plain error

because "he fail[ed] to show that an [additional] explanation would have

changed his sentence.” United States v. Tang, 718 F.3d 476, 483 (5th Cir.

2013).

Finally, Horton maintains that the district court plainly erred in failing

to explain its decision to impose the maximum 262-month sentence of the

guidelines range. Because Horton's guideline range exceeds 24 months, he

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maintains that the district court failed to state "the reason for imposing a

sentence at a particular point within the range.” 18 U.S.C. § 3553(c)(1). At

sentencing, Horton argued for a sentence at the bottom of the guidelines

range based on his role as a "mule” for Martinez's drug enterprise.

However, the record establishes that the district court stated specific reasons

to impose the sentence, namely to "adequately address the sentencing

objectives of punishment and deterrence.” See United States v. Smith, 440

F.3d 704, 707 (5th Cir. 2006) (holding district court need not engage in a

"checklist recitation of the [§] 3553(a) factors”). "When the judge exercises

her discretion to impose a sentence within the Guideline range and states for

the record that she is doing so, little explanation is required.” United States

v. Mares, 402 F.3d 511, 519 (5th Cir. 2005) (noting that the judge should

"carefully articulate the reasons” when imposing a non-guideline sentence).

The sentencing transcript reveals that the court based its sentencing decision

on the facts presented in the PSR and the 3553(a) factors. Horton fails to

satisfy the third prong of the plain error analysis because he does not explain

how the district court's further elaboration would have resulted in a shorter

sentence. United States v. Hebron, 684 F.3d 554, 559 (5th Cir. 2012) (noting

that the defendant "bears the burden of showing with a reasonable

probability that, but for the error, he would have received a lesser sentence”).

For the foregoing reasons, the district court’s judgment is

AFFIRMED.