United States Court of Appeals

for the Fifth Circuit

No. 21-10253

United States of America, 

Plaintiff—Appellee,

versus

Anthony Thomas Callahan, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:20-CR-277-1

Before Barksdale, Stewart, and Dennis, Circuit Judges.

Per Curiam:*

Anthony Thomas Callahan appeals his statutory-maximum sentence 

of 120 months of imprisonment, imposed upon his guilty-plea conviction of 

being a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 

924(a)(2). Callahan challenges both the procedural and substantive 

reasonableness of his sentence. 

* 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

March 14, 2022

Lyle W. Cayce

Clerk

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2

For the first time on appeal, Callahan challenges the district court’s 

calculation of his offense level, arguing that his total offense level should have 

been 11 after the district court sustained an objection at sentencing. As the 

Government correctly notes, once the district court sustained Callahan’s 

objection to an enhancement and, based on the order in which adjustments 

apply under the Sentencing Guidelines, his offense level was below the 

threshold for a third-level reduction under U.S.S.G. § 3E1.1(b). See 

U.S.S.G. § 1B1.1(a)(1)–(3); § 3E1.1(a)–(b). Callahan thus has shown no 

error, much less a clear or obvious one, in the calculation of his advisory 

guidelines range. See United States v. Coto-Mendoza, 986 F.3d 583, 585 (5th 

Cir. 2021), cert. denied, 2021 WL 4508433 (U.S. Oct. 4, 2021) (No. 20-8439).

Similarly, Callahan is mistaken in his challenge to the district court’s 

determination that three of his five prior convictions, uncounted for purposes 

of his criminal history but considered for purposes of sentencing, were 

felonies. Because the three uncounted offenses were Texas state jail felonies,

punishable by a term in prison of up to two years, they qualified as felonies 

under the Sentencing Guidelines. See U.S.S.G. § 4A1.2(o); Tex. Penal 

Code Ann. § 12.35. The district court did not clearly or obviously err in 

treating the prior convictions as felonies. See Coto-Mendoza, 986 F.3d at 585.

In the one procedural challenge which Callahan arguably preserved, 

he argues that the district court erred in considering “disputed” conduct 

underlying pending state charges. Callahan did not provide competent 

rebuttal evidence to the presentence report. See United States v. Solis, 299 

F.3d 420, 455 (5th Cir. 2002). The district court, therefore, did not clearly 

err in relying on the presentence report’s detailed factual recitation of the 

conduct, which was derived from state and federal investigative materials and 

confirmed with an interview with federal law enforcement. See United States 

v. Kearby, 943 F.3d 969, 974 (5th Cir. 2019), cert. denied, 140 S. Ct. 2584 

(2020); United States v. Windless, 719 F.3d 415, 420 (5th Cir. 2013).

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In another unpreserved challenge reviewed only for plain error, see 

Coto-Mendoza, 986 F.3d at 585, Callahan argues that the district court failed 

to provide an adequate explanation for his sentence, particularly the upward 

variance. In light of the district court’s fact-specific explanation, aligned to

the 18 U.S.C. § 3553(a) factors, Callahan fails to show error, plain or 

otherwise, in the sufficiency of the district court’s explanation for the 

sentence. See Gall v. United States, 552 U.S. 38, 50–51 (2007); Coto-Mendoza, 

986 F.3d at 585; United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). 

Much of Callahan’s argument goes to the substantive reasonableness 

of his sentence. Callahan preserved this challenge, and we review for abuse 

of discretion, considering whether, under the totality of the circumstances 

and as a matter of substance, the § 3553(a) sentencing factors support the 

sentence. See United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 

2012). We are not persuaded by Callahan’s conclusory arguments based on 

general punishment statistics and unsubstantiated sentencing disparities, the 

weight given to his pending criminal charges and criminal history, and the 

extent of the variance. See United States v. Waguespack, 935 F.3d 322, 337 

(5th Cir. 2019); Gerezano-Rosales, 692 F.3d at 400–01; United States v. 

Brantley, 537 F.3d 347, 348–50 (5th Cir. 2008).

The totality of the circumstances, including the significant deference 

we accord the district court’s reasoning and consideration of the § 3553(a) 

factors, supports the sentence imposed. See Gall, 552 U.S. at 51. Callahan’s

disagreement with the propriety of his sentence and the district court’s 

balancing of the § 3553(a) factors is insufficient to establish that the district 

court abused its discretion. See United States v. Douglas, 957 F.3d 602, 609–

10 (5th Cir. 2020). The judgment of the district court is AFFIRMED.

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