Case: 16-10443      Document: 00513813273         Page: 1    Date Filed: 12/27/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-10443                                  FILED
                                  Summary Calendar                        December 27, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LAURA MARIE ELKINS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-257-2


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Laura Marie Elkins appeals the 16-month sentence imposed on her
guilty plea conviction for possession of stolen mail. See 18 U.S.C. § 1708. She
also received a three-year sentence of supervised release. The sentence is
above the six-month high end of the guidelines sentencing range but within
the statutory maximum term of five years. See § 1708.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 16-10443

      Elkins sole issue on appeal is framed as a challenge only to the
substantive reasonableness of the sentence. Nonetheless, Elkins argues that
the district court: (1) employed an improper procedure by “tentatively”
observing in advance of the sentencing hearing that the guidelines range may
be inadequate, (2) determined a sentence without considering all the
sentencing factors, and (3) failed to adequately explain the sentence. These
arguments would be subject to plain error review, as they were not raised in
the district court. See Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008). Far from being
“plain error,” the district court’s arriving at a tentative sentencing decision and
announcing it before the sentencing hearing did not offend sound practice, as
“judges in all cases should make sure that the information provided to the
parties in advance of the [sentencing] hearing, and in the hearing itself, has
given them an adequate opportunity to confront and debate the relevant
issues.” Irizarry v. United States, 553 U.S. 708, 713-16 (2008). Here, the
district court made clear that it was inviting discussion and argument about
the points it raised before the hearing. Thus, her claim is subject to reasonable
dispute and cannot be plain error. See Puckett, 556 U.S. at 135; see also United
States v. Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009). Further, the district court
gave an explanation for its sentence and demonstrated that it considered the
relevant factors. Therefore, Elkins has not carried her burden of showing plain
error in those respects. See United States v. Sandlin, 589 F.3d 749, 757 (5th
Cir. 2009).
      We also reject Elkins’s claim that her sentence is excessive and therefore
substantively unreasonable. We note that Elkins’s own counsel suggested a
guidelines sentencing range of 10 to 16 months, but we pretermit the question
of invited error. See United States v. Baytank (Houston), Inc., 934 F.2d 599,



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                                  No. 16-10443

606-07 (5th Cir. 1991). Elkins cannot prevail even under the more deferential
abuse-of-discretion standard of review. See United States v. Rodriguez, 602
F.3d 346, 351 (5th Cir. 2010); United States v. Rodriguez, 523 F.3d 519, 525
(5th Cir. 2008).
      Elkins offers no convincing reason for forgoing the deferential review of
the district court’s choice of sentence that precedent ordains. See Gall v.
United States, 552 U.S. 38, 46, 49-50 (2007); see also United States v. Smith,
440 F.3d 704, 707 (5th Cir. 2006). Instead, she stakes her claim of substantive
unreasonableness on her contention that procedural error necessarily resulted
in the arbitrary selection of her sentence and on her conclusory assertion that
justice does not require her to suffer an enhanced sentence. Because she has
not demonstrated any procedural error, Elkins cannot prevail on a dependent
claim of substantive unreasonableness. Nor has she shown that the district
court erred in reasoning “that the § 3553(a) factors, on the whole, justified the
sentence.” Gall, 552 U.S. at 59-60. The district court emphasized that Elkins
had engaged in extensive criminal activity in addition to but not unrelated to
her crime of stealing mail. Even if we agreed with Elkins “that a different
sentence [is] appropriate,” that would be “insufficient to justify reversal.” Id.
      AFFIRMED.




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