UNITED STATES оf America, Plaintiff-Appellee v. Quincy Demond HOOVER, also known as Q., Defendant-Appellant.
No. 15-30620
United States Court of Appeals, Fifth Circuit.
Date Filed: 10/31/2016
837 F.3d 525 | 2016 WL 6407412
Elizabeth Cary Dougherty, Esq., Dougherty Law Firm, L.L.C., Baton Rouge, LA, for Defendant-Appellant
Before CLEMENT, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Appellant Quincy Demond Hoover (“Hoover“) appeals his sentеnce. For the following reasons, we AFFIRM.
I.
During a multi-year investigation of illegal drug activity in northwestern Louisiana, agents at the Drug Enforcement Administration intercepted several еlectronic communications linking Hoover to a widespread drug-ring funneling illicit substances into the state from Houston, Texas. Acting on this information, police arrested Hoоver during a routine traffic stop. A search of his vehicle revealed a small amount of marijuana, seven active cellphones, a drug ledger, and a hidden compartment capable of holding approximately ten, one-kilogram packages. About one month later, police searched Hoover‘s home, including а truck parked outside, and confiscated two loaded handguns, seven pounds of marijuana, 2,500 grams of hydrocodone and Xanax, and $20,000 in cash. That same day, police arrested five other co-conspirators and seized $496,000, including $16,000 stored in Hoover‘s personal bank account.
Hoover was indicted on six counts in a massive multi-defendаnt prosecution involving a cocaine distribution conspiracy. He pleaded guilty to conspiracy to distribute and possess with intent to distribute 500 grams or more of coсaine, in violation of
The district court ordered a presentence investigation report (“report“). All parties agree that the report contained erroneously calсulated advisory-Guidelines ranges and misstated the statutory minimums for supervised release for both counts. The
Before imposing sentence, the district court asked Hoover‘s attorney whether his “client wish[ed] to engage in allocution.” The attorney declined, affirmatively stating that “[w]e‘ll waive allocution.” The district court did not address Hoover directly. Nor did Hoover or his attorney make an on-the-record argument about the aрpropriate sentence. The district court sentenced Hoover to consecutive prison terms of 108 months for the conspiracy count and 60 months for the fireаrm count followed by two five-year terms of supervised release to run concurrently.
II.
“If a litigant believes that an error has occurred (to his detriment) during a federal judiciаl proceeding, he must object in order to preserve the issue.” Puckett v. United States, 556 U.S. 129, 134 (2009). “If he fails to do so in a timely manner, his claim for relief from the error is forfeited.” Id. In federal criminal cаses, an appellate court‘s authority to remedy such forfeited claims is limited to situations where the district court committed “[a] plain error that affects substantial rights.”
Thе Supreme Court has established a four-prong approach to “plain-error review.” United States v. Olano, 507 U.S. 725, 735-37 (1993). “First, there must be an error or defect—some sort of [d]eviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant.” Puckett, 556 U.S. at 135 (internal quotation marks omitted). Second, the error “must be clear or obvious, rather than subject to reasоnable dispute.” Id. Third, the appellant must demonstrate that the error “affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734. If—and only if—the first three prongs are satisfied, the court of appeals has the discretion to remedy the error. This discretion should only be exercised if the error “seriously affect[s] the fairness, integrity or рublic reputation of judicial proceedings.” Id. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). Satisfying all four prongs is difficult, “as it should be.” United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004).
III.
Hoover now challenges his sentence, arguing that the district court plainly erred by (1) miscalculating the drug quantity and base offense level; (2) failing to provide Hoover with an opportunity to personally allocute at his sentencing hearing; (3) calculating an inсorrect statutory range for supervised release for both counts; and (4) imposing a portion of its sentencing determination prior to the issuance of the report. Each argument will be addressed in turn.
Second, Hoover argues that the district court violated his right of allocution by asking his attornеy whether Hoover wished to allocute rather than addressing Hoover personally. Cf.
When the district court selected a 108-month sentence, it expressed concern that Hoover “apparently was a traveling pharmacy” and found that “the gun offense in connection with” his cocaine conspiracy offense “puts him into a different category of criminal.” Hoover does not identify anything he would have said to allay these сoncerns. See Magwood, 445 F.3d at 830. Accordingly, it would be inappropriate for us to exercise discretion and reverse.
Third, Hoover challenges the erroneous calculаtion of his statutory and Guidelines ranges of supervised release. Again, we apply the plain error standard because Hoover did not object when the district court adopted the errors in the report. Molina-Martinez v. United States, — U.S. —, 136 S. Ct. 1338, 1342-43, 194 L. Ed. 2d 444 (2016) (“The Guidelines are complex, and so there will be instances when a district court‘s sentencing of a defendant within the framework of an incorrect Guidelines range goes unnoticed. In that circumstance, because the defendant failed to object to the miscalculation, appellate review of the error is governed by Federal Rule of Criminal Procedure 52(b).“) Hoover fails to even address, and thus fails to satisfy, the fourth prong of the plain-error standard. Seе Puckett, 556 U.S. at 135; United States v. Andaverde-Tiñoco, 741 F.3d 509, 523 (5th Cir. 2013). We cannot conclude that the erroneous calculation constitutes a “complete miscarriage of justice.” Magwood, 445 F.3d at 830.
Finally, Hoover contends that the district court erred by announcing at the plea agreement hearing, “before the [report] was submitted,” that it would impose a five-year term of supervised release for thе firearm count. We disagree. A review of the transcript reveals that the district court made no such ruling but was simply trying to explain to Hoover that, unlike his sentences of imprisоnment, his terms of supervised release would run concurrently. See
IV.
For the forgoing reasons, Hoover‘s sentence is AFFIRMED.