Case: 20-30459 Document: 00515863141 Page: 1 Date Filed: 05/14/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-30459 May 14, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Steven Dewayne Gilbert,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:19-CR-3-1
Before Jolly, Graves, and Costa, Circuit Judges.
Per Curiam:*
Steven Dewayne Gilbert pleaded guilty to conspiracy to possess with
intent to distribute cocaine and was sentenced at the bottom of the guidelines
range to 188 months of imprisonment. On appeal, Gilbert argues that his
sentence is procedurally unreasonable because the district court did not
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-30459
adequately explain the reasons for its sentence. Gilbert’s request for a
downward variance was not sufficient to preserve this issue for appeal;
consequently, our review is for plain error. See United States v. Coto-
Mendoza, 986 F.3d 583, 586 (5th Cir. 2021).
To establish plain error, Gilbert must show a forfeited error that is
clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error but only if it “‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’” Id. (alteration in
original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
The district court stated that it had received Gilbert’s sentencing
memorandum and character letters in advance of the sentencing hearing, and
it listened to Gilbert’s arguments for a downward variance. The district
court also stated that it had selected the sentence after considering the 18
U.S.C. § 3553(a) sentencing factors, including Gilbert’s history, personal
characteristics, and involvement in the offense. This is “enough to satisfy”
us that the district court “considered the parties’ arguments” and had “a
reasoned basis for exercising [its] own legal decisionmaking authority.” Rita
v. United States, 551 U.S. 338, 356 (2007). Thus, Gilbert has not shown a
clear or obvious error. See Puckett, 556 U.S. at 135; Coto-Mendoza, 986 F.3d
at 586-87.
Gilbert also argues for the first time in a Federal Rule of Appellate
Procedure 28(j) letter that in light of the Third Circuit’s decision in United
States v. Nasir, 982 F.3d 144 (3d Cir. 2020) (en banc), his conviction for
conspiracy to possess with intent to distribute cocaine no longer qualifies as
a controlled substance offense for purposes of the career offender
enhancement under U.S.S.G. § 4B1.1. Because Gilbert did not challenge the
career offender enhancement in his opening brief, we will not consider the
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No. 20-30459
issue. See United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir.
2005), abrogated on other grounds by Carachuri-Rosendo v. Holder, 560 U.S. 563
(2010).
Accordingly, the judgment of the district court is AFFIRMED.
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