United States v. Harkey, 20-30705

John Jackson Harkey pleaded guilty to receipt/possession of an unregistered firearm and was sentenced to 70 months imprisonment (within the Guidelines).
The district court treated Harkey as a “prohibited person” under 18 U.S.C. § 922(g)(3) based on a history of marijuana use and applied a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(B); a six‑level enhancement under § 2K2.1(b)(1)(C) was also referenced.
PSR and prosecutor evidence: Harkey admitted marijuana use from age 18 through arrest at 33; prior convictions and arrests for marijuana offenses; search of his residence found ~22.4 g marijuana and $3,873.
Harkey did not object to the PSR information at sentencing; he raised (on appeal) that the court erred in treating him as a prohibited person and in guideline calculations, and that counsel was ineffective for failing to object.
Because Harkey did not object below, the Fifth Circuit reviewed unpreserved claims for plain error and declined to resolve the ineffective‑assistance claim on direct appeal (allowing collateral review).
The Fifth Circuit affirmed the sentence as substantively reasonable, applying the presumption of reasonableness for within‑Guidelines sentences and finding Harkey failed to rebut it.

Issue	Plaintiff's Argument	Defendant's Argument	Held
District court erred in finding Harkey a “prohibited person” under § 922(g)(3) and applying base offense level 20	Gov't relied on Harkey's admissions, convictions, arrests, and PSR/search evidence to support "unlawful user" finding	Harkey argued his drug use did not make him a prohibited person or justify the higher base level	No plain error; PSR evidence unrebutted, supports finding of regular, extended marijuana use (affirmed)
Six‑level §2K2.1(b)(1)(C) enhancement	Gov't relied on PSR/search evidence to support enhancements	Harkey challenged enhancement on appeal	Issue treated as abandoned on appeal for inadequate briefing
Ineffective assistance of counsel for failing to object to guideline calculations	Gov't: claim not raised below; record undeveloped	Harkey: counsel rendered ineffective assistance at sentencing	Fifth Circuit declined to resolve on direct appeal; allowed raised on collateral review
Substantive reasonableness of 70‑month within‑Guidelines sentence	Gov't: district court properly weighed §3553(a) factors; within‑Guidelines sentence presumptively reasonable	Harkey: sentence excessive, misweighed factors, sentencing disparity	Affirmed: presumption applies; Harkey failed to show clear error or rebut presumption

United States v. Mondragon‑Santiago, 564 F.3d 357 (5th Cir. 2009) (plain‑error review where objections not raised below)
Puckett v. United States, 556 U.S. 129 (2009) (standard for plain error and waiver)
United States v. Nava, 624 F.3d 226 (5th Cir. 2010) (defendant must rebut PSR facts with competent evidence to prevent court reliance)
United States v. Rodriguez, 602 F.3d 346 (5th Cir. 2010) (district court may rely on PSR absent competent rebuttal)
United States v. McCowan, 469 F.3d 386 (5th Cir. 2006) ("unlawful user" requires regularity and extended period of drug use)
United States v. Isgar, 739 F.3d 829 (5th Cir. 2014) (ineffective‑assistance claims often deferred to collateral review when record is undeveloped)
United States v. Alonzo, 435 F.3d 551 (5th Cir. 2006) (within‑Guidelines sentence entitled to presumption of reasonableness)
United States v. Koss, 812 F.3d 460 (5th Cir. 2016) (defendant must rebut presumption by showing court misweighed §3553(a) factors)
United States v. Cooks, 589 F.3d 173 (5th Cir. 2009) (standards for substantive reasonableness and sentencing balancing)
United States v. Hernandez, 633 F.3d 370 (5th Cir. 2011) (sentencing‑disparity argument alone insufficient to show unreasonableness)
United States v. Tomblin, 46 F.3d 1369 (5th Cir. 1995) (failure to brief issues adequately results in abandonment)
Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993) (inadequate briefing constitutes abandonment)