USA v. Butler

United States Court of Appeals
for the Fifth Circuit
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No. 25-30629
Summary Calendar
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United States of America,

Plaintiff—Appellee,

versus

Jarmar Butler,

Defendant—Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:24-CR-123-1
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Before Haynes, Graves, and Ramirez, Circuit Judges.
Per Curiam:
*

Jarmar Butler pleaded guilty to possession of a firearm or ammunition
by a convicted felon. The district court varied upwardly from the guidelines
range and sentenced him to 92 months in prison.
Butler contends that the district court plainly erred by applying a base
offense level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(B) because the record

*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
United States Court of Appeals
Fifth Circuit
FILED
August 14, 2026

Lyle W. Cayce
Clerk
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No. 25-30629
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evidence did not establish that he possessed a semiautomatic firearm that is
capable of accepting a large capacity magazine. Even if we assume for the
sake of argument that Butler has shown clear or obvious error as to the
application of § 2K2.1(a)(4)(B), he has failed to show a reasonable probability
that, but for the error, his sentence would have been different. See United
States v. Hott, 866 F.3d 618, 621 (5th Cir. 2017). The district court explained
why the 18 U.S.C. § 3553(a) factors led it to select the 92-month sentence
and stated that it thought the sentence imposed was proper regardless of the
guidelines calculation. See id. Because the record reflects that Butler’s
sentence was based on factors independent of the guidelines range, his
substantial rights were not affected. See id.
Also, Butler asserts that his non-guidelines sentence was substantively
unreasonable because the district court gave significant weight to improper
factors in deciding that an upward variance was merited—his criminal history
and his possession of a semiautomatic firearm that is capable of accepting a
large capacity magazine. The record reflects that the district court reviewed
the facts of the case, considered the aggravating and mitigating factors, made
an individualized assessment, and found that a specific sentence was proper
in light of the § 3553(a) factors. The district court properly determined that
Butler’s criminal history was underrepresented and that his prior criminal
conduct and the relevant conduct in this case warranted an above-guidelines
sentence. See United States v. Fraga, 704 F.3d 432, 441 (5th Cir. 2013);
United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). The record does
not support his contention that the district court varied based on the
determination that he possessed a semiautomatic firearm that is capable of
accepting a large capacity magazine. Under the totality of the circumstances,
the degree of the variance was not so disproportionate so as to overcome the
factors that supported its imposition. See United States v. Brantley, 537 F.3d
347, 350 (5th Cir. 2008).
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No. 25-30629
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Butler has filed an opposed motion to file a supplemental brief to argue
for the first time that, in applying an adjustment under § 2K2.1(b)(6)(B), the
district court wrongly deferred to the guideline commentary. Generally, an
argument that has not been raised in appellant’s original brief is waived. See
United States v. Ogle, 415 F.3d 382, 383 (5th Cir. 2005); United States v.
Pompa, 434 F.3d 800, 806 n.4 (5th Cir. 2005). Butler has failed to show
extraordinary circumstances that would justify deviation from this rule. See
Ogle, 415 F.3d at 383; Pompa, 434 F.3d at 806 n.4.
Accordingly, the judgment of the district court is AFFIRMED. The
motion to file a supplemental brief is DENIED.
Case: 25-30629 Document: 64-1 Page: 3 Date Filed: 08/14/2026