United States Court of Appeals

for the Fifth Circuit ____________

No. 22-30607

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Josh Tapp, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:12-CR-201-5 

______________________________

Before King, Haynes, and Graves, Circuit Judges.

Per Curiam:*

Josh Tapp was sentenced to 70 months of imprisonment and five years 

of supervised release after pleading guilty to conspiracy to possess with intent 

to distribute and to distribute 100 grams or more of heroin, in violation of 21 

U.S.C. § 846. While he was on supervision for the underlying offense, Tapp 

was charged with new offenses in a separate case. After pleading guilty to 

conspiracy to distribute controlled substances and possession of a firearm in 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

November 29, 2023

Lyle W. Cayce

Clerk

Case: 22-30607 Document: 00516984023 Page: 1 Date Filed: 11/29/2023
No. 22-30607

2

furtherance of a drug trafficking crime in that separate case, the district court 

revoked his term of supervised release on the underlying conviction and 

imposed a 30-month sentence and ordered it to run consecutively to the 130-

month term imposed for the conviction on the new offenses. 

Tapp argues that the district court committed a significant procedural 

error by ordering his revocation sentence to run consecutively to the sentence 

imposed on his new conviction. Because Tapp did not object on this basis in 

the district court, our review is limited to plain error. See United States v. 

Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). He notes that the district court 

in the new criminal case ordered that the sentence imposed on that 

conviction run concurrently with any sentence to be imposed upon 

revocation. 

“[I]f a term of imprisonment is imposed on a defendant who is already 

subject to an undischarged term of imprisonment, the terms may run 

concurrently or consecutively.” 18 U.S.C. § 3584(a). Despite Tapp’s

assertions to the contrary, the district court in the instant case did not commit 

procedural error in ordering his revocation sentence to run consecutively to 

the sentence imposed on his new conviction, as we have recognized that “one 

district court has no authority to instruct another district court how, for a 

different offense in a different case, it must confect its sentence.” United 

States v. Quintana-Gomez, 521 F.3d 495, 498 (5th Cir. 2008). 

Also with regard to the consecutive nature of the sentence, Tapp 

asserts that the revocation sentence is substantively unreasonable. A 

properly preserved challenge to a revocation sentence is reviewed under a 

“plainly unreasonable” standard. United States v. Fuentes, 906 F.3d 322, 325 

(5th Cir. 2018) (internal quotation marks omitted). If, however, the error was 

not preserved, we will review for plain error. See id. In this case, we need not 

decide the standard of review because Tapp would not prevail under either 

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No. 22-30607

3

standard. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). 

Tapp has failed to argue or demonstrate that the district court failed to 

consider a factor that should have received significant weight, gave weight to 

an improper factor, or clearly erred in balancing the factors; thus, he has not 

shown that the sentence imposed is substantively unreasonable. See United 

States v. Cano, 981 F.3d 422, 427 (5th Cir. 2020). 

Finally, Tapp challenges the criminal history score that was calculated 

on the revocation of supervised release. He argues that the district court 

should have placed him in criminal history category III, rather than criminal 

history category IV. Because Tapp did not raise this argument before the 

district court, we review for plain error. See Puckett v. United States, 556 U.S. 

129, 136 (2009). 

The criminal history category applicable to sentencing after 

supervised release is “‘the category applicable at the time the defendant was 

originally sentenced to a term of supervision.’” United States v. McKinney, 

520 F.3d 425, 428 (5th Cir. 2008) (quoting U.S.S.G. § 7B1.4, comment. 

(n.1)). Here, the district court properly used the criminal history category 

applicable when Tapp was sentenced on his original conviction for 

conspiracy to possess with intent to distribute and to distribute 100 grams or 

more of heroin. See id. Additionally, a defendant may not challenge the 

calculation of his criminal history score for the first time on appeal from a 

sentence imposed upon revocation of supervised release. See United States v. 

Hinson, 429 F.3d 114, 116 (5th Cir. 2005). Tapp is unable to demonstrate that 

the district court committed plain error in relying on his original criminal 

history category. See Puckett, 556 U.S. at 135. 

Based on the foregoing, the judgment is AFFIRMED. 

Case: 22-30607 Document: 00516984023 Page: 3 Date Filed: 11/29/2023