United States v. Dajuan Bryson

United States Court of Appeals
for the Fifth Circuit

No. 19-51126
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Dajuan Edward Bryson,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CR-74-1

Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Dajuan Edward Bryson appeals his 60-month sentence following his
guilty plea conviction for possession of a firearm by a felon in violation of 18
U.S.C. § 922(g). Bryson contends that the district court erred in imposing
an above-guidelines sentence without adequate explanation. He additionally

*
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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
December 16, 2020

Lyle W. Cayce
Clerk
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argues that the district court’s decision to impose his sentence consecutively
to his state-court sentences is both inadequately explained and ambiguous.
We review the reasonableness of a sentencing decision in two phases.
Gall v. United States, 552 U.S. 38, 51 (2007). First, we must “ensure that the
district court committed no significant procedural error.” Id. Procedural
errors include “failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the 18 U.S.C.
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including an explanation
for any deviation from the Guidelines range.” Id. If there is no procedural
error, or if the procedural error is harmless, we review the substantive
reasonableness of the imposed sentence for abuse of discretion. United States
v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009) (citing Gall, 552 U.S.
at 51). We review the district court’s application of the guidelines de novo
and its factual findings for clear error. Id.
Bryson first contends that the district court procedurally erred by
failing to adequately explain his above-guidelines sentence. We disagree.
The district court is required to state in open court the “specific
reason” for imposing an above-guidelines sentence. 18 U.S.C. § 3553(c); see
also United States v. Key, 599 F.3d 469, 474 (5th Cir. 2010). The district court
must “thoroughly articulate its reasons,” which must be “fact-specific and
consistent with the sentencing factors enumerated in section 3553(a).”
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). However, neither
“robotic incantations” nor a “checklist recitation” of the relevant § 3553(a)
factors is required. Id. Rather, the district court’s explanation for the
sentence must be sufficient “to allow for meaningful appellate review and to
promote the perception of fair sentencing.” Gall, 552 U.S. at 50; see also Rita
v. United States, 551 U.S. 338, 356 (2007) (“The sentencing judge should set
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forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.”).
Here, the district court first considered the revised Presentence
Investigation Report (“PSR”), which it subsequently adopted without
objection. The PSR calculated Bryson’s criminal history score to be VI,
based on 32 criminal history points as a result of numerous convictions for
burglary and theft. The PSR calculated Bryson’s guideline range of 30 to 37
months imprisonment, based on a total offense level of 12, but the probation
officer recommended an upwards departure due to Bryson’s significant
criminal record. The district court expressed concern that despite his young
age, Bryson had already reached the “highest” possible criminal history
score. After hearing Bryson’s allocution and additional argument related to
Bryson’s criminal record, the district court advised Bryson that it was
considering an above-guidelines sentence. Following a recess in which
Bryson agreed to proceed with the sentencing, the district court stated that it
considered the § 3553(a) factors and varied upwards to sentence Bryson to
60 months in custody.
While the imposition of the sentence was brief, the district court
explained that the upward variance was based on the nature and
circumstances of the offense, the history and characteristics of the defendant,
and the need to protect the public and deter future criminal conduct—each
of which are proper considerations under § 3553(a)(1) and § 3553(a)(2).
Additionally, it is clear from the record and the parties’ sentencing
arguments that the district court was concerned with Bryson’s significant
criminal record. See Rita, 551 U.S. at 359 (2007) (“[G]iven the
straightforward, conceptually simple arguments
. . . the judge’s statement of
reasons . . . though brief, was legally sufficient.”); United States v. Fraga, 704
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F.3d 432, 439 (5th Cir. 2013) (“[T]he record makes the sentencing judge’s
reasoning clear and allows for effective review; no further explanation was
required.”). The district court fulfilled its procedural obligations.
Bryson adds that the district court’s subsequent written statement of
reasons, which noted that Bryson’s sentence was the result of an upward
departure rather than an upward variance, further demonstrates the district
court’s inadequate rationale for imposing an above-guidelines sentence. Not
so. The record clearly indicates that the district court intended to impose an
above-guidelines sentence. Cf. United States v. Juarez, 812 F.3d 432, 437 (5th
Cir. 2016). Moreover, we agree with the government that any error here is
harmless. It is well settled that “when there is a conflict between a written
sentence and an oral pronouncement, the oral pronouncement controls.”
United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001); see also United
States v. De Los Santos, 668 F. App’x 98, 99 (5th Cir. 2016) (classifying
sentence as a variance based on district court’s oral pronouncement where
the statement of reasons called it a departure).
Bryson next asserts that the district court failed to give adequate
reasons for imposing his sentence consecutively to his undischarged state-
court sentences. This is similarly unpersuasive. The record shows that the
district court expressly considered the § 3553(a) factors in reaching Bryson’s
sentence, and implicitly adopted the government’s argument that a
consecutive sentence was warranted to address Bryson’s extensive,
persistent criminal conduct. See United States v. Everist, 368 F.3d 517, 521
(5th Cir. 2004). Bryson does not argue that a consecutive sentence is
substantively unreasonable, thereby abandoning any such argument on
appeal. See United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996); Beasley
v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986).
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Inasmuch as Bryson contends that the judgment is ambiguous
regarding which sentences are to be served consecutively, his argument is
unavailing. Although the judgment does not cite the case numbers assigned
to his undischarged state-court sentences in Williamson and Ellis County,
Texas, the plain intention of the district court regarding which sentences
should be stacked is apparent from the judgment and pertinent records.
Bryson does not argue, must less demonstrate, that further clarification is
necessary for the Bureau of Prisons to execute his judgment and thus fails to
show that the judgment is impermissibly ambiguous. See United States v.
Garza, 448 F.3d 294, 302 (5th Cir. 2006).
AFFIRMED.

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