# United States Court of Appeals **for the Fifth Circuit**

____________
No. 23-20211 Summary Calendar

____________ United States of America,
Plaintiff—Appellee ,

versus
Nolan Sharp,
Defendant—Appellant

.

______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21-CR-189-1

______________________________
Before King, Haynes, and Graves, Circuit Judges

. Per Curiam: * Following his conviction for possessi on of a firearm by a felon and his successful appeal of his original sent ence, Nolan Sharp was resentenced to 33 months of imprisonment. The district court ordered his federal sentence to run concurrently with a previously im posed state sentence in Cause Number

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

### FILED December 19, 2023 Lyle W. Cayce Clerk Case: 23-20211 Document: 00517006945 Page: 1 Date Filed: 12/19/2023No. 23-20211

2 1700807 and consecutively to the state sentence in Cause Number 1706501. Sharp appeals only the impositi on of a consecutive sentence. Sharp first argues that the district court mistakenly believed it lacked discretion to impose a fully concurrent sentence. His request at sentencing for a fully concurrent sentence did no t allege or attempt to correct any misunderstanding of the district cour t’s discretion, so plain error review applies to this issue. See United States v. Mondragon-Santiago , 564 F.3d 357, 361 (5th Cir. 2009). Sharp must show that (1) there is “an error or defect”; (2) that error was “clear or obvious, rather than subject to reasonable dispute”; and (3) that the error “affe cted [his] substantial rights.” Puckett v. United States , 556 U.S. 129, 135 (2009). Sharp primarily relies on a statem ent in a supplemental memorandum from the probation officer that the district court “shall” order the sentence to run consecutively to Cause Number 1706501. He also asserts that his argument is supported by the district co urt’s failure to exp licitly discuss the 18 U.S.C. § 3553(a) sentencing factors and the factors in U.S.S.G. § 5G1.3, comment. (n.4(A)). However, we conc lude that the relevant statement in the memorandum clearly was part of a sentencing recommendation rather than any indication of a lim itation on the district cour t’s discretion. Further, the supplemental memorandum cited U.S. S.G. § 5G1.3(d) which explicitly states: “In any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutivel y to the prior undischarged term of imprisonment . . . .” We also note th at the discussions at sentencing clearly and repeatedly indicated to the district court that it had the discretion to impose either a consecutive or a conc urrent sentence. Unlike in the cases cited by Sharp, we do not see any statement by th e district court indicating that it believed it lacked the discreti on to impose a concurrent sentence. Case: 23-20211 Document: 00517006945 Page: 2 Date Filed: 12/19/2023No. 23-20211

3 Indeed, the presence of its discretion was clear. We conclude that Sharp has not shown any error, much less th at it was clear or obvious. In addition, Sharp argues that the di strict court failed to comply with requirements that it consider the § 3 553(a) factors or the § 5G1.3 factors when deciding between a concurrent or consecutive sentence. In a related argument, he argues that the district court failed to adequately explain its decision. Again, Sharp did not alert the district court to these issues, so we review for plain error. See Mondragon-Santiago , 564 F.3d at 361. We have held that, “[a]bsent a cont rary indication in the record,” evidence that the court was made aw are of relevant facts and arguments “implies that the district court was a ware of and considered the § 3553(a) factors.” United States v. Izaguirre-Losoya , 219 F.3d 437, 440 (5th Cir. 2000). Our review of the record shows that the parties and probation officer provided the district court with facts and arguments relevant to most of the § 3553(a) and § 5G1.3 factors. In addi tion, we conclude that the district court’s statements “set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments an d has a reasoned ba sis for exercising his own legal decisionmaking authority.” Rita v. United States , 551 U.S. 338, 356 (2007). For the above reasons, we conclude that Sharp has not shown that the district court plainly erred.

AFFIRMED

. Case: 23-20211 Document: 00517006945 Page: 3 Date Filed: 12/19/2023