Case: 23-30342 Document: 00517041267 Page: 1 Date Filed: 01/23/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-30342 FILED
Summary Calendar January 23, 2024
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Charles D. Cloud,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:10-CR-256-4
______________________________
Before Higginbotham, Stewart, and Southwick, Circuit
Judges.
Per Curiam: *
Charles D. Cloud appeals the 36-month, above-guidelines sentence
imposed following the revocation of his supervised release. He contends that
his sentence is substantively unreasonable because the district court
improperly based its sentence on the seriousness of his underlying violations.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-30342 Document: 00517041267 Page: 2 Date Filed: 01/23/2024
No. 23-30342
Although Cloud’s request for a lesser sentence in the district court
was sufficient to preserve a general substantive reasonableness claim, see
Holguin-Hernandez v. United States, 140 S. Ct. 762, 766-67 (2020), it was not
sufficient to preserve the specific claim that the court relied on an improper
factor in its sentencing decision, see United States v. Zarco-Beiza, 24 F.4th
477, 481-82 (5th Cir. 2022). Accordingly, we review his specific substantive
reasonableness claim for plain error only. Puckett v. United States, 556 U.S.
129, 135 (2009).
The district court found at sentencing that Cloud pleaded guilty to
misdemeanor charges arising from an incident in which he shot a man who
was arguing with a woman outside of Cloud’s residence. 1 The court stated
that a 36-month sentence was necessary to prevent future criminal activity
and protect the public from Cloud’s further crimes. It is therefore clear from
the record that the court considered Cloud’s violation conduct in the context
of “his propensity to commit future crimes and/or threaten public safety,”
which are “permissible purposes of a revocation sentence.” United States v.
Sanchez, 900 F.3d 678, 685 (5th Cir. 2018). Accordingly, Cloud fails to show
the court committed clear or obvious error. See Puckett, 556 U.S. at 135.
Insofar as Cloud generally challenges the extent of the upward
variance, we review his preserved argument for an abuse of discretion. See
Sanchez, 900 F.3d at 685. Cloud fails to show the district court abused its
discretion in imposing the 36-month sentence. This is well within the range
of upward variances that we have previously affirmed. See, e.g., United States
v. Kippers, 685 F.3d 491, 500-01 (5th Cir. 2012).
_____________________
1
To the extent that Cloud’s counseled brief can be interpreted as attempting to
challenge the court’s reliance on police reports in making this finding, Cloud has
abandoned any such challenge by failing to brief it. See United States v. Scroggins, 599 F.3d
433, 446-47 (5th Cir. 2010); see also Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986).
2
Case: 23-30342 Document: 00517041267 Page: 3 Date Filed: 01/23/2024
No. 23-30342
The district court’s judgment is AFFIRMED.
3