United States v. Dantana Tanksley

854 F.3d 284

5th Cir.

2017

Check Treatment

Docket

UNITED STATES of America, Plaintiff-Appellee v. Dantana TANKSLEY, Defendant-Appellant

No. 15-11078

United States Court of Appeals, Fifth Circuit

April 13, 2017

Conference Calendar

tors—for example, that the Government chose not to forfeit all of the funds it seized from him—rendered the imposed sentence an abuse of discretion. Nguyen also argues that the district court failed to give weight to the fact that his criminal conduct was fully captured by the Guidelines, that he lacked a criminal record, and that he timely paid restitution and other penalties.

We disagree. First, as we held above, the district court‘s determination that Nguyen participated in structuring activities was not improper. Furthermore, the district court, both in an extensive statement at sentencing and in the SOR, explained that it was imposing the above-Guidelines sentence based on a variety of factors, including: (1) due to “the magnitude of [Nguyen‘s] dishonesty and unwillingness to abide by our society‘s basic rules of conduct,” (2) based on “the aggravated nature of [Nguyen‘s] criminal conduct,” (3) because Nguyen‘s “exceptional [business] success . . . had a significant foundation in [his] unlawful activity,” (4) because Nguyen “was able to retain millions of dollars of funds” that “probably would have been forfeited to the [G]overnment” had it pursued forfeiture proceedings, (5) to afford deterrence to “others who are knowledgeable of [Nguyen‘s] situation [and] would be tempted to engage in [similar] criminal conduct,” (6) to protect the public from Nguyen‘s further crimes and the criminal conduct of others, and (7) because financial penalties alone would not satisfy § 3553(a)‘s sentencing objectives. See 18 U.S.C. § 3553(a)(1)-(2). We cannot say that these considerations, taken together, are insufficient to justify a 36-month upward variance. See Gall, 552 U.S. at 51, 128 S.Ct. 586; Diehl, 775 F.3d at 724; Mares, 402 F.3d at 519-20. Moreover, the district court held an evidentiary hearing, questioned the witnesses, thoroughly reviewed the exhibits, and explained its findings in considerable detail. See Diehl, 775 F.3d at 724-25.

3.

Given this court‘s “highly deferential” review for substantive reasonableness, id. we hold that the district court did not abuse its discretion in imposing the upward variance to Nguyen‘s sentence.

III. CONCLUSION

For the foregoing reasons, Defendant-Appellant Avan Nguyen‘s sentence is AFFIRMED.

Brian W. McKay, Esq., James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney‘s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

Jessica Graf, Jason Douglas Hawkins, Federal Public Defender, Federal Public Defender‘s Office, Northern District of Texas, Dallas, TX, Taylor Wills Edwards Brown, Christopher Allen Curtis, Assistant Federal Public Defender, Federal Public Defender‘s Office, Northern District of Texas, Fort Worth, TX, for Defendant-Appellant.

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.

REAVLEY, Circuit Judge:

The government has filed a petition for en banc rehearing. The en banc petition remains pending. This court supplements its opinion entered on petition for panel rehearing to reaffirm that, under Texas law, section 481.112(a) of the Texas Health and Safety Code is indivisible and “establishes alternative means of punishing an offense in the continuum of drug distribution.” Weinn v. State, 326 S.W.3d 189, 194 (Tex. Crim. App. 2010); see United States v. Tanksley, 848 F.3d 347, 352 (5th Cir. 2017). We reached this conclusion based on Lopez v. State, 108 S.W.3d 293 (Tex. Crim. App. 2003). In urging the en banc court to rehear the case, the government argues our holding “is clearly inconsistent with Guerrero v. State, 305 S.W.3d 546 (Tex. Crim. App. 2009), which controls the issue and holds that manufacturing and possessing with intent to deliver a controlled substance are separate offenses.” The government‘s argument is misguided because it is drawn from a plurality opinion. Weinn makes clear that Guerrero never upset Lopez. Weinn, 326 S.W.3d at 193 (footnotes omitted) (explaining that, in Guerrero, the “majority, comprised of two concurring judges and three dissenting judges, noted that the legislature did not intend multiple punishments for manufacture and simultaneous possession with intent to deliver with respect to a single quantity of controlled substances.“). Without a doubt, Weinn “definitively” establishes that Section 481.112 is an indivisible statute. See Mathis v. United States, U.S. , 136 S.Ct. 2243, 2256, 195 L.Ed.2d 604 (2016).¹

Notes

We note a typographical error in the original Opinion, which wrongly referenced “Hinkle‘s holding that Section 481.112 is divisible.” Hinkle, of course, found Section 481.112 to be indivisible. To avoid any future confusion, we also note that our harmless error analysis relied exclusively on the test set forth in , because the district court did not consider the correct guidelines range. We have also held in : “[A] guidelines calculation error is harmless where the district court has considered the correct guidelines range and has stated that it would impose the same sentence even if that range applied.”