United States v. Moncrief

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10603
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MICHAELA DANESE MONCRIEF, also known as Mickey,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-295-6

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Michaela Danese Moncrief appeals the 108-month below-guidelines
sentenced imposed following her conviction for conspiracy to possess with
intent to distribute methamphetamine. Moncrief argues that her sentence is
substantively unreasonable because the lower sentences that her co-
conspirators received resulted in unwarranted sentencing disparities under 18
U.S.C. § 3553(a)(6).

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
March 12, 2020

Lyle W. Cayce
Clerk
Case: 19-10603 Document: 00515342068 Page: 1 Date Filed: 03/12/2020

No. 19-10603
2
Where the issue has been properly preserved, this court reviews the
reasonableness of a sentence for abuse of discretion. Gall v. United States, 552
U.S. 46, 51 (2007). By failing to raise the specific issue that she now raises on
appeal, Moncrief arguably forfeited the issue, which would result in review for
plain error only. See United States v. Dunigan, 555 F.3d 501, 506 (5th Cir.
2009); United States v. Torres-Perez, 777 F.3d 764, 766 (5th Cir. 2015).
Because her claim fails under the more favorable standard of review, we need
not reach the issue.
A sentence within or below a properly calculated guidelines range is
entitled to a rebuttable presumption of reasonableness. United States v.
Simpson, 796 F.3d 548, 557 (5th Cir. 2015); United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). “The presumption is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” Cooks,
589 F.3d at 186.
Section 3553(a)(6) instructs the district court to consider “the need to
avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct,” but it “requires the
district court to avoid only unwarranted disparities between similarly situated
defendants nationwide.” United States v. Guillermo Balleza, 613 F.3d 432, 435
(5th Cir. 2010). “[I]t does not require the district court to avoid sentencing
disparities between co-defendants who might not be similarly situated.” Id.
Because Moncrief cites only the sentences of her co-conspirators as
evidence of unwarranted sentencing disparities, she necessarily fails to
establish that the district court failed to account for unwarranted sentencing
disparities. See United States v. Cedillo-Narvaez, 761 F.3d 397, 406 (5th Cir.
Case: 19-10603 Document: 00515342068 Page: 2 Date Filed: 03/12/2020

No. 19-10603
3
2014). To the extent that Moncrief challenges the length of her below-
guidelines sentence, her mere disagreement with the district court’s weighing
of the § 3553(a) sentencing factors is insufficient to establish that the sentence
is substantively unreasonable. See Gall, 552 U.S. at 51. Accordingly, the
judgment of the district court is AFFIRMED.
Case: 19-10603 Document: 00515342068 Page: 3 Date Filed: 03/12/2020