*3 GARZA, THE Before DENNIS COURT: Because I think that is HIGGINSON, ease, Judges. appropriate your Circuit Mr. Gerezano. MR. No. GEREZANO: GARZA,
EMILIO M. Judge: Circuit you THE I think COURT: liar. [a] (“Gere- Jose Ramon Gerezano-Rosales think horrible attitude. zano”) appeals his non-Guidelines sentence don’t any being think business imprisonment of 108 illegal months period. the United States You come reentry. We VACATE crimes, in to do nothing commit for resentencing. and REMAND serious crimes.
MR. I haven’t GEREZANO: done— I your THE COURT: That’s what crimi- history. you nal Would like for me? pleaded guilty Gerezano to an indict- your You don’t like I it? take charging ment him illegal reentry. Well, Okay. it; I’m going change . (b). §§ See pre- 8 U.S.C. & The I am going to find that guidelines (“PSR”) report sentence calculated an ad- adequate; are not that since have sen- visory range imprisonment Guidelines of of you tenced the circumstances have sentencing, 57-71 months. At the district attitude, changed your based on your adopted the PSR’s calculation of the lack respect, your of your demeanor and range. Guidelines giving After Gerezano failure to— allocute, the opportunity to MR. sorry. I’m GEREZANO: orally sentenced Gerezano to months, finding that THE “advisory guide- COURT: —understand the laws adequate are and that a fair and the United States. reasonable sentence can be achieved with a MR. I’m disrespect- GEREZANO: not sentence selected from advisory within the ing.
range.” THE you COURT: are. You I find that are me. disrespecting stand for the
However, after the orally district court law of the your United States and de- Gerezano, sentenced it apparently discov- disrespectful. meanor is Your words ered for the first time that Gerezano could are disrespectful. you Everything about English. understand Gerezano’s knowl- so far has been just since I edge English caused ques- the court to you. sentenced That changed circum- veracity tion the of some of the mitigating stances. Because that I find that the statements Gerezano during had made guidelines are longer adequate. no So allocution. As proceeded the district court your sentence instead of 71 will months to admonish regarding Gerezano the terms now you be 108 months. Would like to release, of his supervised eventual Gereza- keep working up? no interrupted questioned the court and of his sentence. The MR. following No. GEREZANO: colloquy ensued: THE suggest you COURT: Then I learn to respectful. be
THE
Stop.
I don’t want to
COURT:
hear anymore
you.
already
I have
The district court’s statement of reasons
you.
you
sentenced
Do
understand that
provided
imposed
that it
a sentence above
are
to—
range
Guidelines
promote
order to
MR.
Why
GEREZANO:
giving respect
for the law and to afford adequate
me so much time?
criminal
deterrence to
conduct.
Meza,
3553(a)(2)(A), (a)(2)(B).
to hold that a
This
we declined
§§
U.S.C.
court’s initial oral formulation of a
appeal followed.
“instantaneously
strips
dis-
sentence
jurisdiction”
change
court of its
trict
II
initially
announced sentence.
a “draconian rule”
(declining
adopt
that the dis-
Gerezano claims
appeal,
On
whereby a “district court’s initial formula-
jurisdiction
“re-sen-
trict court lacked
type
of the sentence is the
which
tion
prison
months in
after
tence” him 108
instantaneously strips the district court of
initially
him to a 71-month
criminal
jurisdiction
defen-
also asserts
imprisonment.
term of
He
immediately
jurisdic-
vests
such
dants
initial 71-month
district court’s
court”).
Meza,
with this
As in
tion
unreasonable.
initial
conclude that the district court’s
oral
even if the
Lastly,
contends that
announcement
Gerezano’s sentence did
jurisdiction
court had
“re-sen-
binding
not constitute
announcing
tence” him after
the initial
*5
juris-
strip
therefore did not
the court of
tence,
non-Guidelines,
108-month sen-
change
to
diction
its initial formulation.
substantively
procedurally and
tence was
Although
court
not change
the district
did
unreasonable.1
upon request
one
Gerezano’s sentence
parties to
of the
alter
initial formula-
A
tion,
id.,
cf.,
its initial
changed
adjourned
formulation before it
the sen-
Gerezano claims that
district
Thus,
“no
tencing hearing.
there was
for-
jurisdiction modify
court lacked
to
his sen
proceedings
in the
from
mal break
which
during
sentencing hearing
tence
reasonably
conclude that
logically
71
He contends
months
108 months.
had
Id. at 509. Ac-
sentencing
finished.”
oral formula
that the district court’s initial
cordingly,
court
not
the district
did
lack
binding
tion of his
was a
sen
jurisdiction
impose
the 108-month sen-
tence,
only
court could
which
tence.
modify under the limited circumstances
3582(c),
§
which
enumerated
18 U.S.C.
B
under
lists the exclusive situations
which
challenges
also
reasonable-
sentencing
modify
can
a term of
First,
of his sentence.
he contends
ness
imposed.
imprisonment once
has
the initial 71-month sentence was
the district court did not increase
Because
Second,
substantively unreasonable.
Ger-
its initial formulation of
sen
that the district court’s deci-
ezano asserts
any of
grounds
tence for
contained
his
sion
raise
sentence to 108 months
3582(c),
Gerezano asserts
the dis
substantively
procedurally and
unrea-
jurisdiction modify
trict court lacked
sonable.
sentence. We review whether
jurisdiction
impose
108-
challenged
court had
We review a
a two-part
reasonableness under
test.
month sentence de novo.
United
(5th
Rhine,
Meza,
v.
States
States v.
F.3d
United
Cir.2011).
.2010).
First,
we review sen-
Cir
challenging
ment
his sentence under
Due
1. Because of our resolution of Gerezano's
challenge to the reasonableness of his sen-
Clause.
Process
tence,
separate argu-
we need
address his
conduct,”
that the
all
uncharged
ensure
into account
of the
a significant procedural
did not commit
noting that
if it
the un-
had considered
(or
error,
failing
conduct,
“such as
to calculate
im-
charged
“this man would be look-
calculating)
properly
range,
the Guidelines
ing at
lot
in prison.”
a more time
Accord-
treating
mandatory,
the Guidelines as
fail-
ingly, the district court could not have
3553(a) factors,
ing
consider
se-
by considering
abused its discretion
un-
lecting
a sentence based on
errone-
conduct
charged
when
announced the
facts,
failing
ous
to adequately explain 71-month sentence because the
did
including
the chosen
an expla- not
sentence—
consider such conduct when formulat-
any
nation
deviation from the Guide-
ing Gerezano’s sentence.
States,
range.”
Gall
38, 51,
U.S.
128 S.Ct.
Rhine, Gall, at (quoting raised sentence from 71 to 108 586). 51, 128 U.S. S.Ct. months based on an erroneous *6 Gerezano claims that the initial 71- disrespected he had the it court after an- substantively month was unrea- nounced the initial Guidelines sentence. sonable the placed because district court Second, Gerezano claims that the non- significant weight on an improper factor— Guidelines sentence was un- ie., his that arrests conduct did not reasonable. He contends that district the lead convictions. specific court failed to state a reason for preserved Gerezano contends that he er- ordering non-Guidelines sentence that challenge ror on his to the reasonableness was prior different than its reasons for of his by asking 71-month sentence the setting Guidelines sentence of 71 months. why district court it had him “given so He also maintains that the district much time” disagreeing and with the court legal had impose no basis to the 108- that the sentence was appropriate his month sentence because the comments he (1) However, case. even if Gerezano’s made after the initial sentence was an- sufficiently statements his raised claim of nounced not justify increasing did his sen- substantive error to allow the tence. itself, district court to correct see United v. States Mondragon-Santiago, 564 F.3d Cir.2009), and it were possible for perfect Gerezano to an appeal Gerezano asserts that we should review the district court’s initial formulation challenges his to the of reasonableness sentence, of his not did abuse its 108-month sentence under an abuse setting discretion when the initial standard, discretion he though even did tence. object not to the sentence in district
When the district announced court. objecting its He contends that to the initial sentence, formulation of Gerezano’s 108-month sentence would have been futile explicitly it stated it “not taking given was the district court’s reaction when he why him partic- given no asked had his initial sentence. objected to ular, objecting disputed much time the court’s de- asserts so and Gerezano would have been the 108-month termination that the 71-month sentence objected his because, he after “suicidal” appropriate. When district court was his sen- the court raised initial changing that it subsequently stated him if he “Would like and asked attitude, on his Gerezano’s sentence based up.” working keep demeanor, respect, failure to lack of and States, understand laws of United if a fails to “Generally, party said, sorry” “I’m not “I’m and Gerezano court, timely raise an district issue disrespecting.” error unless plain will review for position clear to the district party made together, comments Taken objected and would informed district court the essential Castillo, futile.” United States objections reason- substance his (5th Cir.2005) (citation omit F.3d of his ableness sentence. Gerezano direct- ted). words, cir In other under certain ly disputed district court’s preserve can sentenc party cumstances court, he had been to the objection if without a formal ing error informing thereby generally the court of objection essential substance “[t]he challenge procedural his reasonable- made known to is obvious Further, although his ness of sentence. (2) the of the court” and “context did question the substantive objection ruling” suggests [informal] of the 108-month sentence reasonableness that “counsel was entitled believe announced, it was we conclude that after not welcomed explanation would be further (a) the prior challenging his comments by the district court.” or entertained (b) of his initial sentence and Mendiola, States v. the initial raising basis (5th Cir.1994); see also 261 n. Fed. were preserve sufficient (“If have an party does not R.CrimP. *7 to challenge the substantive reasonable- order, a object ruling to to opportunity dis- ness of the 108-month sentence. As objection not later absence of an does below, could have reason- cussed Gerezano that prejudice party.”). ably believed the district court would that these we deter- circumstances Under again if he had have raised his sentence (1) he that mine Gerezano has established objected to the sentence. Giv- 108-month court clearly communicated district circumstances, these we conclude en to challenges of his the essential substance ini- questioning comments his Gerezano’s and substantive reasonable- procedural finding the court’s tial sentence and (2) object- his have ness of disrespectful he had been communicated Castillo, futile. would have been See ed objections of his the essential substance (describing F.3d at district court. “unique circumstances” creating behavior necessity of error that excused the formal Second, comments made preservation). court when raised Gerezano’s district to 108 months entitled Gerezano First, statements Gerezano’s a formal and his counsel to believe that essential substance sentencing made the objection have been futile and would objections obvious his court to potentially caused the initially an would After court. After Gere- months, further increase the sentence. a Gereza- sentence of nounced initial challenged length sentencing judge of his deferential as the a zano disputed position sentence and district court’s superior judge find facts and disrespectful, statement that he had import [18 their under U.S.C.] changed sen the district court respect particular defendant.” from 71 to 108 months and asked Key, United States v. 599 F.3d Gerezano, keep “Would like to work (5th Cir.2010) (citation omitted). After the no, ing up[.]” When Gerezano said initially district court announced the 71- responded, “Then I suggest sentence, appears month Gerezano respectful.” implica learn to be The clear times, interrupted multiple ques- tion of district court’s statement was sentence, tioned the his and chal- that the district court would raise Gereza lenged the district court’s assessment if he persisted questioning no’s sentence history criminal his and attitude. Given Thus, reasonably it. Gerezano could have difficulty assessing tone and de- interpreted the district question transcript, meanor from a cold we defer to him asking keep whether he would “like the district court’s that Gerezano up” working as a threat to increase his to the court after it ini- if objected Accordingly, he to it. tially announced 71-month sentence. under these circumstances we conclude id. preserved error on his chal lenges to the of his 108- reasonableness though month even Gerezano did formally object Lastly, to his sen 108-month Gerezano asserts that his non- fully
tence or articulate the of his basis Guidelines sentence was un- Bernal, objections. See United States v. reasonable. He maintains that the district (hold Cir.1987) 182-83 court failed to a specific state reason for ing objection jury defendant’s ato ordering a non-Guidelines sentence that charge adequate when the district prior was different than its reasons for objection short cut the defendant’s setting a Guidelines sentence 71of months. and the “defendant was not afforded He further contends that there was no opportunity explain objection fully”). legal support basis to the non-Guidelines Thus, we will review Gerezano’s non- sentence because the he comments made Guidelines sentence un for reasonableness after the district court 71- announced the der an abuse of discretion Mon standard. month sentence did not justify variance *8 dragov-Santiago, F.3d 564 at 360. from the Guidelines. “In reviewing a non-[G]uide lines sentence for substantive unreason
Gerezano contends that the dis ableness, the court will consider the to procedural trict by court committed error circumstances, tality of the 108-month, including the imposing the non-Guidelines of any extent variance from the Guide clearly sentence based on a erroneous (citation ie., range,” omitted), that id. at 475 Gerezano was disre being fact — “whether, spectful to determine questioned when he as a matter of appropri the substance, originally imposed sentencing ateness the the factors in sec 71-month 3553(a) assessing In support sentence. whether a tion sentence.” district Smith, procedural by court committed error se United States v. (5th (citations Cir.2006) omitted).
lecting a sentence based on a erro “A fact, “[a]ppellate highly neous review unreasonably is sentence non-[G]uideline[s] stance, that it sentencing when the stated would statutory fails reflect (1) sentence, it “I for increase Gerezano’s said: does not account where factors I signifi- you disrespecting are me. have received find factor that should a weight gives significant for law of the States and weight, stand United cant factor, your disrespectful. Your improper an irrelevant or demeanor judgment in disrespectful. Everything clear error of are represents a words factors.” balancing sentencing Unit- has you so far about Broussard, 669 F.3d just .... ed States sentenced Because since Cir.2012) Smith, (quoting no guidelines that I that the are find 708). determination, making this at adequate.” The district court then longer to the dis- “give must due deference justified we disrespect stated Gerezano’s 3553(a) § court’s decision that trict from 71 increasing his sentence whole, factors, justify the on a extent asked, months and “Would like Gall, 552 U.S. the variance.” keep working up?” When Gerezano said S.Ct. no, suggest you replied, “Then Further, be dis- respectful.” learn to asserts that the The Government initially a trict court found that Guidelines of reasons estab court’s statement district adequate formally would be sentence the court varied from lishes that a Guidelines sentence —facts announced for disrespect to Gerezano’s due Guidelines support our conclusion that which and the need the laws of the United States imposed a non-Guidelines sentence findings future criminal to deter conduct— on reaction to his initial based are the record supported which sentence. 3553(a). §in How statutory a basis 108-month, ever, we conclude itself the “law the By equating unreasonably fails sentence non-Guidelines States,” the court appears 3553(a) sentencing § factors to reflect the to set a non-Guidelines intended a clear represents because the sentence in promote respect “to for order balancing in the sen judgment error 3553(a)(2)(A). law” under U.S.C. tencing Specifically, although factors. no position regarding We take whether reasonably the district court acknowledge duty to impose disrespected the found that had based, part, promote on the “to need court, for we hold that was unreasonable respect for the law” under allows three-year impose the district court a district court consider statements primarily variance from Guidelines by a made defendant at especially disrespect, based on that since disrespectful to the itself. How previously announced a sen had ever, even if district courts can consider tence within the Guidelines. assessing when the need such statements promote respect
The district court’s statements at sen- *9 law, impose the district court’s tencing primarily imposed reveal that it decision three-year it variance based on sentence because non-Guidelines in disrespect ini- constituted a clear error found that Gerezano’s reaction to the balancing disrespectful. judgment sentencing in fac tial sentence was See 551; Broussard, see v. (examining tors. Id. at United States 669 at 551-52 (5th Goldsmith, 261, by Fed.Appx. made district court at sen- 192 268 statements Cir.2006) (holding “in (unpublished) tencing impos- to determine its reasons for sentence). light reasoning in- of the stated For ing defendant’s 402 III
district court and the record” that only court’s “can be ex- sentence We VACATE Gerezano’s sentence and plained judgment as a in ‘clear error resentencing. REMAND for ”) (cita- balancing sentencing factors’ omitted). tion DENNIS, Judge, in concurring Circuit Specifically, after the district court an- part in concurring judgment: and sentence, the initial
nounced
interrupted
why
ask
it had
join
majority’s
in
judgment
time,
him
given
disputed
so much
the Gerezano-Rosales’ 108-month non-Guide-
district court’s determination that his sen-
lines
substantively
sentence was
unreason-
“no”,
by saying
was appropriate
and
able and that
sentence
must therefore
(3) attempted
dispute
the district court’s be vacated and remanded for resentenc-
history by say-
assessment of his criminal
However,
ing.1
I believe that the district
ing “I haven’t done—.” Based on this
instructed
should be
to reinstate its
record,
insolently
no matter how
Gerezano initial
71
sentence of months without con-
court,
delivered his retorts to the district
ducting
proceedings.
further
The 37-
his statements
not have reasonably
could
month
in the
increase
justified a
years
variance of three
above
merely
excessive
un-
and
range, especially
the Guidelines
since the
crime;
reasonable sentence for Gerezano’s
court had
found that
previously
a Guide-
in reality
punishment
extra
imposed
lines sentence
appropriate.
was otherwise
for what the court found to be his disre-
Gall,
(“In
at
U.S.
S.Ct. 586
spectful
court during
conduct
reviewing the
of a
reasonableness
tencing proceeding. The record in this
range,
outside the
may
Guidelines
...
[we]
case
support
does not
that Gere-
take the degree of variance into account
disrespectfully
zano acted
or in contempt
and consider the
of a
extent
deviation from
during
the sentencing proceed-
Guidelines.”); Broussard,
669 F.3d at
ings; and the district court did not adhere
(same).
limiting procedures
it in
required of
Given
the context
the entire sen
punishing contempt
of court.
tencing hearing, particularly the district
A district court commits procedural er-
implicit
threat
raise Gerezano’s
when,
alia,
ror
inter
if
a sentence
questioned
“select[s]
he
the non-Guide
based on
erroneous
facts.”
v.
we conclude that the
Gall
108-
States,
month,
38, 51,
552 U.S.
S.Ct.
non-Guidelines sentence was sub
(2007).
stantively
L.Ed.2d
Appellate
unreasonable because it consti
tuted a
review of a
judgment
findings
clear error in
district court’s factual
bal
ancing the
“is
sentencing
highly
factors
deferential as
under the
totality
Broussard,
of the
judge
position
circumstances.
is in a superior
facts
find
551; Goldsmith,
669 F.3d at
judge
import
Fed.
their
under [18 U.S.C.]
Appx.
respect
268.2
with
to a particular de-
Pineda-Arrellano,
argument
2. Gerezano’s
the enhanced
v.
1326(b)
penalties under
Cir.2007).
8 U.S.C.
are ele
proved
ments of the offense that must be
to a
is,
jury beyond a
doubt
he
reasonable
as
con
join
majority’s opinion
I also
in the
cedes, foreclosed. See
Almendarez-Torres
I, II.A, II.B., II.C.l,
regard to sections
*10
States,
224, 235,
United
523 U.S.
118 S.Ct.
II.C.3.
1219,
(1998);
403
Hernandez-Martinez,
599
States v.
485 F.3d
Key,
States v.
F.3d
United
fendant.”
(5th Cir.2010)
Cir.2007).2
270,
469,
(quoting United
the
473
272-73
Unless
531
Campos-Maldonado,
v.
F.3d
objection “sufficiently
States
makes his
defendant
(5th Cir.2008)). However,
337,
this
clear,
is
forfeited.”
the issue
considered
court
not shield the district
does
Chavez-Hernandez,
deference
v.
United States
reflects that
review where the record
(5th Cir.2012).
objec
The
finding
was
erroneous.
the factual
specific;
vague
tion must be
claim of
preserve
objec
error
the
is insufficient
that
in-
district court stated
The
for
States Whi
appeal.
tion
United
by
creased Gerezano-Rosales’
(5th Cir.2009).
telaw,
of
“at-
months because Gerezano-Rosales’
words,
general objection
other
titude,
respect,
...
... demeanor
lack of
length will not be
the
of
sufficient
...
failure to understand
laws
and
States,”
appeal.
for
specifically
preserve specific
and
stated
issues
the United
disrespecting
“I
that
that:
find
3553(c)
Moreover,
requires
18 U.S.C.
of the United
me.
stand for
law
the district court “at the time of sentenc-
your
disrespectful.
and
demeanor is
States
ing,
open
in
for
state
reasons
[to]
disrespectful. Everything
Your words are
imposition
the particular
of
sentence.”
disrespectful
has
far
been
about
so
reasons,
give
If the
fails to
sufficient
you.” The district
just
sentenced
since
request
that
must
parties
have held
factual
court made this
disre-
a party
that
do so: “Unless
contests the
spect after Gerezano-Rosales answered
generally
under
Guidelines
questions
English, although
in
he
several
is,
argues
the Guide-
—that
assigned
interpreter
an
at his re-
or,
judgment,
an unsound
for
reflect
why he
judge
then asked the
quest,
they
example,
generally
not
treat
do
time,”
being sentenced to “so much
and
certain
characteristics
in the
defendant
judge’s
disagreed
assessment of
with
way
argues
departure,
for
proper —or
findings
to his past
his attitude and
as
judge normally
say
need
more.”
not
Whi-
Thus,
not
actions.
the record does
reflect
telaw,
at 261.
It cannot
that a
be
any
had shown
dis-
Gerezano-Rosales
defendant can be found
for
court,
my
respect toward the
but
view
simply
very
requesting
explanation
only
that he asked the reasons for
reflects
by
give.
law to
court mandated
objected to
of the sentence and
given
In the
case and
context
this
that it
not
ruling
the court’s
unreason-
specific, appropriate language used
able.
defendant,
objection
request
and
alone
view,
Ultimately, my
punished
he was
disrespect warranting
do not constitute
doing
precedent
what our circuit
re-
contempt of
or
punishment either for
preserve an issue
quired that he do to
guidelines.
higher
as
sentence under
object
A
appeal:
specificity.
defen-
no evidence in the record that
object
There is
who
to his sentence
dant
does
will,
subject
inappropriately
Gerezano-Rosales
acted
appeal,
stringent
on
be
request
objection.
while made his
“plain error”
review. United
he
standard
relief,
plain
grant
prevail
has the
2. A defendant can
under
then
discretion
"
seriously
only
only
can
if
‘the
affects the
error standard of review
if he
estab
error
error;
fairness,
"(1)
reputation
ju-
integrity,
public
clear and
lish
an
that is
obvi
”
ous;
proceedings.'
(quoting
Id.
substantial
dicial
that affected his
725, 732,
Olano,
Hernandez-Martinez,
113 S.Ct.
rights.”
485 F.3d at
States v.
U.S.
conditions,
(1993)).
all
L.Ed.2d 508
If he
three
establishes
*11
cursed,
The
not reflect that he
If the district
record does
court believed that
disrespectfully
defendant had acted
in
used foul
or
language,
or
court, it
contempt pro-
should have used
gestures.
inappropriate
made
The record
ceedings rather than a sentence enhance-
only
English
reflects
that he answered in
punish
to
judge
ment
him. The
has the
objected
an
although
interpreter,3
he had
authority to maintain decorum in the
sentence,
and
his dis-
verbalized
courtroom and
disrespect using
sanction
agreement
the district
with
court’s assess-
criminal
contempt
proceedings.
facts,
required
ment
which
of the
he is
to
401;
U.S.C.
42.
Fed.R.Crim.P.
Even if
preserve
in
for ap-
do
order to
his issues
were
assume that Gerezano-Ro-
peal.
majority acknowledges in
As the
conduct
sales’
amounted to a direct con-
opinion,
the district
increased Gere-
in
tempt
presence,
court’s
which is
“ap-
zano-Rosales’ sentence because he
record,
supported by
the maxi-
pears
interrupted
to have
multi-
punishment
mum
judge
could
ple times, questioned
of
his
imposed
have
would have been six
challenged
and
imprisonment.
months’
Where the con-
history
court’s assessment of his criminal
tempt sentence would exceed six months’
and
finding
attitude.”4 To sustain a
of
imprisonment, a jury trial is constitution-
disrespectfulness
and a
in-
substantial
required.
ally
Wright
3A Charles Alan
in
crease
sentence on
grounds
these
will
al.,
et
Federal Practice and Procedure
place
in position
having
defendants
2011);
§ 706
ed.
see also Bloom v.
being given higher
risk
order
Illinois,
391 U.S.
88 S.Ct.
preserve
objections
their
arguable
and
(1968).
addition,
Guidelines sentence (“If 3742(f)(1)
onment. See U.S.C. appeals court of determines of law imposed violation
sentence was case for remand the
... shall such sentencing proceedings with
further appro- the court considers
instructions as in- remanding with such an By
priate.”).
struction, any ap- we could avoided resorting to without
pearance partiality reassign- safeguard of
the more strenuous
ment. FIRE
NATIONAL UNION INSURANCE PITTSBURGH, OF
COMPANY
PENNSYLVANIA, Plaintiff-Appel-
lant,
AMERICAN EUROCOPTER CORPO- S.A.S.,
RATION; Eurocopter De-
fendants-Appellees. 11-10798.
No. Appeals,
United States Court
Fifth Circuit. 27, 2012.
Aug.