UNITED STATES v. HICKMON (2020)

Antonia Janai Hickmon appeals her 36-month, below-guidelines range sentence for bank robbery. Hickmon contends that the district court committed plain error by predicating its application of a guidelines enhancement for making a death threat, see U.S.S.G. § 2B3.1(b)(2)(F), on facts it found by a preponderance of the evidence, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Government moves for summary affirmance or, alternatively, for an extension of time to file a merits brief, arguing that Hickmon's appeal of her sentence is foreclosed by United States v. Bazemore, 839 F.3d 379 (5th Cir. 2016). Hickmon concurs that Bazemore forecloses relief.

We disagree that Bazemore forecloses Hickmon's appeal. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, we deny the motion for summary affirmance. Nonetheless, we conclude, without the need for further briefing, that Hickmon has failed to demonstrate clear or obvious sentencing error. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009); United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011). We therefore deny the Government's alternate motion for an extension of time to file a merits brief and affirm the judgment.

There was no error, plain or otherwise, because the district court's factfinding increased only Hickmon's guidelines range; it neither changed the statutory maximum sentence nor resulted in a new or increased statutory minimum sentence. Cf. Apprendi, 530 U.S. at 476, 478, 487-90, 120 S.Ct. 2348; Hurst v. Florida, 577 U.S. 92, 136 S. Ct. 616, 619-24, 193 L.Ed.2d 504 (2016); Alleyne v. United States, 570 U.S. 99, 107-09, 114, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013); United States v. Tuma, 738 F.3d 681, 693 (5th Cir. 2013); see Bazemore, 839 F.3d at 393 & n.9.

The Government's motion for summary affirmance is DENIED. The Government's alternate motion for an extension of time to file a merits brief is DENIED. The judgment is AFFIRMED.

FOOTNOTES

FOOTNOTE.  

Per Curiam:* FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.