IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2010
No. 10-10078 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TYRONE LUVOID HUTCHERSON
Defendant-Appellant
Appeal from the United States District Court for the
Northern District of Texas, Amarillo
2:08-CR-44-1
ON PETITIONS FOR REHEARING
Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:*
IT IS ORDERED that the petitions for rehearing are DENIED. We
appreciate that the government’s Unopposed Motion to Supplement the
Record on Appeal was filed with and granted by this court and not the district
court as our November 29, 2010 opinion states. However, our reasoning in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
our opinion did not rely on the notion that the district court had viewed these
supplemental documents prior to sentencing. On further consideration, we
conclude that it would not have been error for the district court to consider
the “Kansas Sentencing Guidelines Journal Entry of Judgment” in
designating Hutcherson as a career offender. Therefore, Hutcherson’s
contention that his sentence should be vacated still fails under plain error
review. It would not have been error – plain or otherwise – for the district
court to consider these documents if they had been submitted to it prior to
sentencing. We further conclude that there is not a reasonable probability
that the district court would fail to apply the career offender enhancement
were we to remand for resentencing. Hutcherson cannot show that the
district court’s error in relying only on the Pre-Sentence Report (PSR) affected
his substantial rights, and thus there is no plain error. Nor do we conclude
that failure to remand for resentencing would seriously affect the fairness,
integrity or public reputation of judicial proceedings.
As the government noted in its Motion to Supplement the Record on
Appeal, we have previously approved supplementation of the record on appeal
in situations such as this one where the defendant claims for the first time on
appeal that a prior conviction does not qualify him for an enhanced sentence.
See e.g., United States v. Fambro, 526 F.3d 836, 849-50; United States v.
Fernandez-Cusco, 447 F.3d 382, 384-86. Our previous approval of such
motions indicates that we will consider additional documents in situations
where the district court erred by relying solely on the PSR. Furthermore, the
appellant never contended in his reply brief or at oral argument that the
documents attached to the government’s motion to supplement were
irrelevant to this appeal.
Based on the foregoing as well as the reasoning in our opinion, the
motions for rehearing are DENIED.