United States v. Hickmon

United States Court of Appeals
for the Fifth Circuit

No. 20-10083
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Antonia Janai Hickmon, also known as Antonia Janai Smith,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-267-1

Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Antonia Janai Hickmon appeals her 36-month, below-guidelines range
sentence for bank robbery. Hickmon contends that the district court
committed plain error by predicating its application of a guidelines
enhancement for making a death threat, see U.S.S.G. § 2B3.1(b)(2)(F), on

*
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opinion should not be published and is not precedent except under the limited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
October 7, 2020

Lyle W. Cayce
Clerk
Case: 20-10083 Document: 00515593747 Page: 1 Date Filed: 10/07/2020

No. 20-10083
2
facts it found by a preponderance of the evidence, in violation of Apprendi v.
New Jersey, 530 U.S. 466 (2000). The Government moves for summary
affirmance or, alternatively, for an extension of time to file a merits brief,
arguing that Hickmon’s appeal of her sentence is foreclosed by United States
v. Bazemore, 839 F.3d 379 (5th Cir. 2016). Hickmon concurs that Bazemore
forecloses relief.
We disagree that Bazemore forecloses Hickmon’s appeal. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, we deny the motion for summary affirmance. Nonetheless, we
conclude, without the need for further briefing, that Hickmon has failed to
demonstrate clear or obvious sentencing error. See Puckett v. United States,
556 U.S. 129, 135 (2009); United States v. Mudekunye, 646 F.3d 281, 289 (5th
Cir. 2011). We therefore deny the Government’s alternate motion for an
extension of time to file a merits brief and affirm the judgment.
There was no error, plain or otherwise, because the district court’s
factfinding increased only Hickmon’s guidelines range; it neither changed
the statutory maximum sentence nor resulted in a new or increased statutory
minimum sentence. Cf. Apprendi, 530 U.S. at 476, 478, 487-90; Hurst v.
Florida, 136 S. Ct. 616, 619-24 (2016); Alleyne v. United States, 570 U.S. 99,
107-09, 114 (2013); United States v. Tuma, 738 F.3d 681, 693 (5th Cir. 2013);
see Bazemore, 839 F.3d at 393 & n.9.
The Government’s motion for summary affirmance is DENIED.
The Government’s alternate motion for an extension of time to file a merits
brief is DENIED. The judgment is AFFIRMED.
Case: 20-10083 Document: 00515593747 Page: 2 Date Filed: 10/07/2020