United States v. Tarpley

United States Court of Appeals
for the Fifth Circuit

No. 19-11231
Summary Calendar

United States of America,

Plaintiff — Appellee,

versus

Alford Donta Tarpley,

Defendant — Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-146-1

Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Alford Donta Tarpley challenges the 100-month sentence imposed by
the district court following his guilty-plea conviction of felon in possession of
a firearm. He contends that the sentence, which constitutes an upward

*
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not be published and is not precedent except under the limited circumstances set forth in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
July 30, 2020

Lyle W. Cayce
Clerk
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No. 19-11231
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variance from the guidelines range of 46-57 months of imprisonment, is
procedurally and substantively unreasonable.
We review criminal sentences, including those based on variances, for
reasonableness. Gall v. United States, 552 U.S. 38, 49-51 (2007). First, we
determine whether the district court committed any “significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines
range . . . [or] selecting a sentence based on clearly erroneous facts.” Id. at
51. If the sentence is procedurally sound, we will “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion
standard . . . tak[ing] into account the totality of the circumstances.” Id.
Although Tarpley objected to the procedural reasonableness of the
district court’s imposition of an above-guidelines sentence based upon his
juvenile history, at no point did he contend that the descriptions of his
juvenile criminal conduct contained in the presentence report were
unreliable or that the district had procedurally erred by sentencing him based
on clearly erroneous facts. See Gall, 552 U.S. at 51. We therefore review for
plain error his contention that the district court improperly based his
sentence, in part, upon incorrect factual findings regarding his juvenile
record. See Puckett v. United States, 556 U.S. 129, 135 (2009). As Tarpley
does not even attempt to show plain error, his challenge fails. See id.
We also review for plain error Tarpley’s unpreserved argument that
the district court miscalculated the guidelines range by holding that his
conviction for robbery causing bodily injury under Texas Penal Code
§ 29.02(a)(1) constituted a crime of violence for purposes of U.S.S.G.
§§ 2K2.1(a)(4)(A) and 4B1.2(a)(1). See id. Tarpley correctly concedes that
his argument is foreclosed by United States v. Burris, 920 F.3d 942, 948-52
(5th Cir. 2019), petition for cert. filed (U.S. Oct. 3, 2019) (No. 19-6186), in
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which we held that a conviction under § 29.02(a)(1) categorically requires
the use of physical force.
Finally, Tarpley contends that his sentence is substantively
unreasonable because the district court gave significant weight to an
improper factor by citing certain juvenile conduct, which he characterizes as
minor, as part of the basis for his sentence. See United States v. Diehl, 775
F.3d 714, 724 (5th Cir. 2015). However, a district court may consider a
defendant’s criminal history, including his juvenile conduct, in imposing a
non-Guidelines sentence. United States v. Smith, 440 F.3d 704, 709 (5th Cir.
2006).
AFFIRMED.
Case: 19-11231 Document: 00515509738 Page: 3 Date Filed: 07/30/2020