Case: 20-30083   Document: 00515574496   Page: 1   Date Filed: 09/22/2020




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

                                                                    FILED
                                                            September 22, 2020
                            No. 20-30083                       Lyle W. Cayce
                          Summary Calendar                          Clerk


   United States of America,

                                                   Plaintiff—Appellee,

                                versus

   Christopher Douglas,

                                               Defendant—Appellant,


                        consolidated with
                          _____________

                            No. 20-30089
                          _____________


   United States of America,

                                                   Plaintiff—Appellee,

                                versus

   Christopher L. Douglas,

                                               Defendant—Appellant.
Case: 20-30083       Document: 00515574496        Page: 2    Date Filed: 09/22/2020

                                    No. 20-30083
                                  c/w No. 20-30089




                  Appeals from the United States District Court
                     for the Western District of Louisiana
                            USDC No. 5:17-CR-70-1
                            USDC No. 5:16-CR-157-1


   Before Owen, Chief Judge, and Dennis and Ho, Circuit Judges.
   Per Curiam:*
          After Christopher Douglas pleaded guilty to distributing five or more
   grams of methamphetamine and conspiracy to commit kidnapping, we
   vacated his original sentence and remanded. He now appeals the concurrent
   387-month sentences the district court imposed on resentencing.
          Douglas first argues that the district court imposed a sentence 60
   months greater than the advisory guidelines range out of actual
   vindictiveness. We review this claim de novo. United States v. Campbell, 

(5th Cir. 1997). As the new aggregated 387-month sentence of
   imprisonment is less severe than the aggregated 420-month sentence
   Douglas originally received, no presumption of vindictiveness arises.

Nothing suggests that Douglas’s sentence is the product of actual
   vindictiveness.
          Next, Douglas argues that the district court made several factfinding
   errors that affected its sentencing decision. He argues that the district court
   erred when it found that the kidnapping victim sustained serious bodily
   injury, that a dangerous weapon was used, and that the victim had been run
   over with a car. He posits further that the district court may have incorrectly
   found and considered that he was involved in a man’s death—conduct for


          *
            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.




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Case: 20-30083      Document: 00515574496         Page: 3     Date Filed: 09/22/2020




                                    No. 20-30083
                                  c/w No. 20-30089

   which he was arrested and later cleared by the police—when it selected his
   sentence. We address this latter argument first, reviewing the district court’s
   factfinding for clear error. United States v. Zuniga, 

, 590 (5th
   Cir. 2013).
          A district court may not consider arrests, standing alone, at sentencing
   for upward departure or variance purposes. United States v. Johnson, 

, 277-78 (5th Cir. 2011). In addressing Douglas’s objection to the
   PSR concerning the arrest, the district court found that Douglas was arrested
   for the offense but was not prosecuted for it and that he denied being
   involved, none of which Douglas challenged then or on appeal. When
   providing reasons for upwardly departing pursuant to U.S.S.G. § 4A1.3, the
   district court did not mention the arrest. Rather, it explained that he had 20
   criminal history points based on convictions including violent crimes that had
   been recently escalating. Because we find no clear error in the district court’s
   factfinding underpinning its sentence as an upward departure, we decline to
   consider his other factual challenges, as they challenge the rationale of the
   district court’s alternative imposition of the 387-month sentence as a
   variance under 18 U.S.C. § 3553(a).
          Douglas next argues that his sentence is substantively unreasonable
   because the district court failed to consider his mitigating evidence and gave
   too much weight to his criminal history. Reasonableness review, in the
   context of a guidelines departure, requires us to evaluate both the decision to
   upwardly depart and the extent of the departure for an abuse of discretion.
   United States v. Zuniga-Peralta, 

, 347 (5th Cir. 2006).
          The district court stated at sentencing that it had received and read
   the sentencing materials submitted by Douglas, including medical records
   and numerous letters submitted by Douglas and others on his behalf, listing
   their names to make sure it had read them all. Moreover, the district court




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Case: 20-30083       Document: 00515574496         Page: 4    Date Filed: 09/22/2020




                                      No. 20-30083
                                    c/w No. 20-30089

   assessed the facts and provided specific reasons consistent with the § 3553(a)
   factors to support its determination that a sentence outside of the guidelines
   range was necessary to achieve the goals of sentencing. See United States v.
   Warren, 

, 332 (5th Cir. 2013). Neither the decision to depart nor
   the extent of the departure amounted to an abuse of discretion. See United
   States v. Brantley, 

, 348-50 (5th Cir. 2008); 

.
          Last, Douglas argues that his sentence is unconstitutional because it
   amounts to cruel and unusual punishment. We generally review Eighth
   Amendment challenges de novo, but since Douglas is raising his challenge for
   the first time on appeal, we review for plain error. United States v. Smith, 

, 418 (5th Cir. 2018).
          When reviewing an Eighth Amendment challenge, we “first make[] a
   threshold comparison of the gravity of the offense against the severity of the
   sentence.” 

(internal quotation marks and citation
   omitted). “Only if the sentence seems grossly disproportionate to the
   offense do we reach the second step of the analysis and compare the sentence
   to (1) sentences for similar crimes in the same jurisdiction and (2) sentences
   for the same crime in other jurisdictions.” United States v. Neba, 

, 264 (5th Cir. 2018) (internal quotation marks and citation omitted).
   Douglas’s argument fails at the threshold step. See

          The judgment of the district court on resentencing is AFFIRMED.




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