United States v. Merritt

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10985
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

KEVIN MERRITT,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-88-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*

Contending that the district court considered unreliable evidence in
selecting his punishment, Kevin Merritt appeals the 235-month prison term
and three-year supervised release term imposed on his guilty plea conviction
for possessing a controlled substance with intent to distribute. See 21 U.S.C.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
June 12, 2020

Lyle W. Cayce
Clerk
Case: 19-10985 Document: 00515450565 Page: 1 Date Filed: 06/12/2020

No. 19-10985
2
§ 841(a)(1), (b)(1)(C). Reviewing under the plain error standard, we affirm.
See Puckett v. United States, 556 U.S. 129, 135–36 (2009).
Although Merritt argues on appeal that the district court erred in
considering unreliable factual recitations in the presentence report (PSR)
concerning three unadjudicated juvenile arrests, he did not raise that
argument in the district court. Instead, he objected to consideration of the
mere fact of the arrests. That objection was not, as it should have been,
sufficiently specific to alert the district court to the nature of the alleged error
and to provide an opportunity for correction.
1
See United States v. Nesmith,
866 F.3d 677, 679 (5th Cir. 2017); United States v. Duhon, 541 F.3d 391, 396
(5th Cir. 2008); see also F
ED. R. CRIM. P. 51(b).
The district court properly exercised its significant discretion in its
implicit determinations that the PSR’s recitations, based on police reports,
concerning the juvenile offenses were reliable. See United States v. Young,
981 F.2d 180, 185 (5th Cir. 1992); United States v. Vela, 927 F.2d 197, 201 (5th
Cir. 1991); see also U.S.S.G. § 6A1.3(a). The 1991 and 1992 offenses were both
investigated in response to reports of illegal activity. Merritt’s 1994 offense
resulted from a surveillance operation in which detectives found the
contraband at issue near Merritt.
Because Merritt did not present competent rebuttal evidence, the district
court was correct in adopting the PSR. See United States v. Ford, 558 F.3d
371, 377 (5th Cir. 2009); United States v. Solis, 299 F.3d 420, 455 (5th Cir.

1
The Supreme Court’s decision in United States v. Holguin-Hernandez is inapplicable
to this case of alleged procedural error, for Holguin-Hernandez did not change “what is
sufficient to preserve a claim that a trial court used improper procedures in arriving at its
chosen sentence.” 140 S. Ct. 762, 767 (2020).
Case: 19-10985 Document: 00515450565 Page: 2 Date Filed: 06/12/2020

No. 19-10985
3
2002). Thus, Merritt has failed to demonstrate error, much less clear or
obvious error. See Puckett, 556 U.S. at 135–36.
AFFIRMED.
Case: 19-10985 Document: 00515450565 Page: 3 Date Filed: 06/12/2020