Case: 18-11520      Document: 00515298221         Page: 1    Date Filed: 02/04/2020




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

                                                                              FILED
                                      No. 18-11520                        February 4, 2020
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LEE MONTEZ THOMPSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-115-1


Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Lee Montez Thompson was convicted of one charge of possession of a
firearm by a felon and was sentenced to serve 120 months in prison and a
three-year term of supervised release. He argues that the district court plainly
erred by not explicitly addressing whether he should be credited with time
served in state custody under U.S.S.G. § 5G1.3(b)(1) and by concluding that he
had attempted to obstruct justice and imposing a corresponding adjustment
under U.S.S.G. § 3C1.1.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11520

      To establish plain error, a defendant must show an error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 

, 135 (2009). If the defendant makes this showing, this court has the
discretion to correct the error, provided that it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. 

error “is difficult, ‘as it should be.’” 

States v. Dominguez
Benitez, 

, 83 n.9 (2004)). Thompson has not met this standard.
      The presentence report (PSR) explicitly acknowledged § 5G1.3(b)(1). In
turn, the PSR was incorporated by reference at the sentencing hearing. At
sentencing, the district court also recognized that there was a related state
sentence by ordering Thompson’s federal and state sentences to run
concurrently. The district court went on to justify its departure from the United
States Sentencing Commission Guidelines by noting Thompson’s “bad criminal
history” and by relying on the 18 U.S.C. § 3553(a) factors.
      The district court did not plainly err in its sentence under § 5G1.3(b)(1)
because it is not clear under current law that a district court must orally
address § 5G1.3(b)(1) at sentencing even though this provision is explicit in the
PSR. See United States v. Trejo, 

, 319 (5th Cir. 2010); United
States v. Green, 647 F. App’x 507, 507–08 (5th Cir. 2016) (unpublished); United
States v. Estrada, 312 F. App’x 664, 667 (5th Cir. 2009) (unpublished); United
States v. Figueroa, 215 F. App’x 343, 344 (5th Cir. 2007) (unpublished). As
noted, the district court explicitly recognized the existence of a related state
sentence and justified its departure from the Guidelines pursuant to § 3553(a).
There is nothing in the record to indicate that the district court
misapprehended § 5G1.3(b)(1). For these reasons, Thompson has not shown
plain error in connection with this claim.




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                                  No. 18-11520

      Thompson’s § 3C1.1 claim likewise fails. Thompson argues that the
district court plainly erred when it applied the obstruction-of-justice
enhancement to his sentencing calculations. His argument hinges on a factual
issue as to which we see no clear error.
      AFFIRMED; MOTION DENIED. 1




      1  Thompson’s motion to supplement the record with his state convictions or,
alternately, for judicial notice, is denied as moot.


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