Case: 19-11367     Document: 00515589029         Page: 1     Date Filed: 10/05/2020




              United States Court of Appeals
                   for the Fifth Circuit                             United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                  No. 19-11367                        October 5, 2020
                                Summary Calendar                       Lyle W. Cayce
                                                                            Clerk

   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Paul Crow,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:19-CR-161-2


   Before King, Smith, and Wilson, Circuit Judges.
   Per Curiam:*
          Paul Crow pled guilty to conspiracy to possess 15 or more counterfeit
   or unauthorized access devices. The district court sentenced Crow to an
   above-guidelines term of 60 months of imprisonment, the statutory
   maximum. On appeal, Crow contends that the district court clearly erred in


          *
            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   opinion should not be published and is not precedent except under the limited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.
Case: 19-11367        Document: 00515589029         Page: 2   Date Filed: 10/05/2020




                                     No. 19-11367


   applying a two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A)(i) for an
   offense involving ten or more victims. Crow also challenges the substantive
   reasonableness of his sentence.
          In reviewing a sentence imposed by the district court, we first consider
   “whether the district court committed a ‘significant procedural error,’ such
   as miscalculating the advisory Guidelines range.” United States v. Odom, 

, 547 (5th Cir. 2012) (citation omitted). “If there is no error or the
   error is harmless, this court may proceed to the second step and review the
   substantive reasonableness of the sentence imposed for an abuse of
   discretion.”

has met its burden of showing that any
   procedural error was harmless. To prove harmless error, the Government
   must convincingly demonstrate “(1) that the district court would have
   imposed the same sentence had it not made the error, and (2) that it would
   have done so for the same reasons it gave at the prior sentencing.” United
   States v. Ibarra-Luna, 

, 714 (5th Cir. 2010). The district court
   unambiguously explained that given the nature of Crow’s offense and Crow’s
   extensive criminal history—and regardless of what the guidelines range
   might be—the statutory maximum sentence was appropriate, if not too
   lenient. The Government has therefore shown that even if the district court
   clearly erred in applying a two-level enhancement under § 2B1.1(b)(2)(A)(i),
   the error was harmless.
          Next, Crow challenges the substantive reasonableness of his sentence.
   Because he sought a sentence within or below the advisory guidelines range
   in the district court, Crow preserved his substantive reasonableness
   challenge by “advocat[ing] for a sentence shorter than the one ultimately
   imposed.” Holguin-Hernandez v. United States, 

, 766 (2020).




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Case: 19-11367      Document: 00515589029          Page: 3     Date Filed: 10/05/2020




                                    No. 19-11367


          In   reviewing    a    non-guidelines     sentence     for   substantive
   reasonableness, this Court considers “the totality of the circumstances,
   including the extent of any variance from the Guidelines range, to determine
   whether, as a matter of substance, the sentencing factors in section 3553(a)
   support the sentence.” United States v. Gerezano-Rosales, 

, 400
   (5th Cir. 2012) (internal quotation marks and citations omitted). We “give
   due deference to the district court’s decision that the § 3553(a) factors, on a
   whole, justify the extent of the variance.” United States v. Broussard, 

, 551 (5th Cir. 2012) (internal quotation marks and citation omitted).
   Still, a non-guidelines sentence may be substantively unreasonable if “it
   (1) does not account for a factor that should have received significant weight,
   (2) gives significant weight to an irrelevant or improper factor, or
   (3) represents a clear error of judgment in balancing the sentencing factors.”
   United States v. Smith, 

, 708 (5th Cir. 2006).
          The record does not show that the district court failed to account for
   a factor that should have received significant weight, gave significant weight
   to an irrelevant or improper factor, or committed a clear error of judgment in
   balancing the § 3553(a) factors. See

to a
   request for this court to reweigh the statutory sentencing factors, which we
   will not do, as the district court “is in a superior position to find facts and
   judge their import under § 3553(a) with respect to a particular defendant.”
   United States v. Campos-Maldonado, 

, 339 (5th Cir. 2008)
   (citation omitted). Under the totality of the circumstances, including the
   extent of the variance and the § 3553(a) factors identified by the district
   court—particularly the scope of Crow’s criminal history, which included
   similar prior offenses—Crow’s sentence is reasonable. See United States v.
   Key, 

, 475–76 (5th Cir. 2010).
          The district court’s judgment of sentence is AFFIRMED.




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