Case: 18-60615      Document: 00514880897        Page: 1     Date Filed: 03/20/2019




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                   No. 18-60615                             FILED
                                 Summary Calendar                     March 20, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk


UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

BRANDON SHAQUILLE BRADLEY-MURRY,
Also Known as Brandon Shaquille Murry,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                 No. 3:18-CR-7-1




Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *

      Brandon Bradley-Murry pleaded guilty of being a felon in possession of


      * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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 CIR. R. 47.5.4.
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                                  No. 18-60615

a firearm and was sentenced to an upward variance of ninety-six months’
imprisonment and three years’ supervised release. First, he contends that the
district court improperly based the variance on pending state charges in viola-
tion of his due process rights and his right to a trial by jury.

      Under Gall v. United States, 

, 51 (2007), this court engages
in a bifurcated review of the reasonableness of a sentence. United States v.
Delgado-Martinez, 

, 752 (5th Cir. 2009). Initially, we consider
whether the district court committed a “significant procedural error,” such as
miscalculating the advisory guideline range. 

is no error or the
error is harmless, we review the substantive reasonableness of the sentence
for abuse of discretion. 

      The district court did not err in considering the information in the pre-
sentence report (“PSR”) concerning the pending state charges for aggravated
domestic assault, witness intimidation, and conspiracy to commit witness
intimidation.   The PSR included detailed information about the pending
charges, including statements made by the victim and by Bradley-Murry.
Bradley-Murry admitted that he had a fight with the victim and had his hands
around her neck. The investigating officer observed that the victim had bruise
marks on the front of her throat, as well as fingernail scratches, and noted that
intense pressure was required to cause that kind of bruising. Officers also
obtained numerous recorded jail telephone conversations in which Bradley-
Murry admitted that he grabbed the victim by the neck, repeatedly asked her
to recant her statement, and asked others to pressure her to recant her state-
ment and to assault her if she refused.

      Bradley-Murry did not present evidence to show that that information
in the PSR was false, inaccurate, or unreliable. Because the PSR provided
detailed information concerning the defendant’s conduct and had an adequate


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                                  No. 18-60615

evidentiary basis with sufficient indicia of reliability, the district court did not
err in considering it. See United States v. Harris, 

, 230−31 (5th
Cir. 2012).

      Further, Bradley-Murry has not shown that the court’s consideration of
that information violated his due process rights or his right to a trial by jury.
See United States v. Hebert, 

, 563−64 (5th Cir. 2015) (holding that
defendant’s Fifth and Sixth Amendment claims were foreclosed by precedent
because courts can engage in judicial factfinding at sentencing where the sen-
tence does not exceed the statutory maximum term); United States v. Mares,

, 519 (5th Cir. 2005) (holding that the district court may make all
factual findings relevant to sentencing based on a preponderance of the evi-
dence without violating Sixth Amendment rights). Bradley-Murry’s ninety-
six-month sentence did not exceed the statutory maximum of ten years under
18 U.S.C. §§ 922(g)(1) and 924(a)(2).

      Second, Bradley-Murry argues that the sentence is substantively unrea-
sonable. He also maintains that the district court erred in relying on his crim-
inal history because it was already taken into account by the guidelines.

      Because Bradley-Murry objected to the substantive reasonableness, he
preserved that issue for appellate review. See United States v. Torres-Perez,

, 767 (5th Cir. 2015). This court ordinarily reviews substantive
reasonableness of a sentence under an abuse-of-discretion standard. United
States v. Gonzalez, 

, 873 (5th Cir. 2018). To show that the non-
guidelines sentence is substantively unreasonable, the defendant must show
that the district court failed to account for a significant factor that should have
received significant weight, gave significant weight to an improper factor, or
made “a clear error in judgment in balancing the sentencing factors.” United
States v. Smith, 

, 708 (5th Cir. 2006).


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                                  No. 18-60615

      The district court adopted the PSR without objection and considered the
18 U.S.C. § 3553(a) factors, the parties’ arguments, Bradley-Murry’s allocu-
tion, and the letters written on his behalf. The court determined that an
upward variance was appropriate based on the § 3553(a) factors and for the
following reasons: The guidelines did not adequately address Bradley-Murry’s
criminal history; he was unable to accept responsibility for his actions; he
committed the instant offense and the pending domestic violence offense while
under supervision; he had no respect for the law; and he had also fought with
arresting officers in the past.

      Those were all permissible reasons for imposing an upward variance.
See 

−09; see also United States v. Herrera-Garduno,

, 531−32 (5th Cir. 2008). Further, Bradley-Murry has not shown
that the extent of the variance was substantively unreasonable, given that this
court has affirmed similar upward variances. See United States v. Brantley,

, 348−50 (5th Cir. 2008); 

−32.

      AFFIRMED.




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