IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50894

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TOMMY LAMAR HALL,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 6:18-CR-181-1

Before WIENER, HAYNES, and COSTA, Circuit Judges.

PER CURIAM:*

Tommy Lamar Hall appeals his 120-month sentence imposed following 

his guilty plea conviction for possession of a firearm by a convicted felon. He 

argues that the district court plainly erred as a result of a procedural error in 

making an upward departure. Specifically, he asserts that the district court 

relied on unadjudicated offenses, which was prohibited by U.S.S.G. 

§ 4A1.3(a)(2)(E), and erroneously determined that he had a violent criminal 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 20, 2019

Lyle W. Cayce

Clerk

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history. He also contends that the sentence is substantively unreasonable 

because of the factors relied upon by the district court.

Hall did not raise the issues that he raises on appeal in the district court. 

We thus review his argument of procedural unreasonableness for plain error. 

See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Under the 

plain-error standard of review, Hall must show a clear or obvious error that 

affected his substantial rights. Id. at 392. If he does so, the court has the 

discretion to correct the reversible plain error, but it should do so only if it 

“seriously affect[s] the fairness, integrity or public reputation of judicial 

proceedings.” Id. (internal quotation marks and citation omitted).

It is unclear whether the district court imposed a “Guidelines sentence” 

or a variance, which is considered a non-Guidelines sentence. See § 

4A1.3(a)(4)(B); United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). In 

any event, the court has determined “that for a non-Guidelines sentence, just 

as for a Guidelines sentence, it is error for a district court to consider a 

defendant’s bare arrest record at sentencing.” United States v. Johnson, 648 

F.3d 273, 278 (5th Cir. 2011) (internal quotations and footnote omitted); see 

§ 4A1.3(a)(3). However, § 4A1.3 does not preclude a district court that is 

contemplating an upward departure from considering reliable information 

indicating that a defendant’s criminal history category substantially fails to 

represent the seriousness of his criminal history or the likelihood of his 

recidivism. See § 4A1.3(a)(1); United States v. Cantu-Dominguez, 898 F.2d 

968, 970 (5th Cir. 1990).

The presentence report (PSR) relied on investigatory reports concerning 

Hall’s arrests for two aggravated assaults and an aggravated robbery. The 

PSR contained reliable information that showed that Hall had engaged in 

assaultive conduct that caused bodily injuries to several individuals. Based on 

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these unrebutted facts, there was an adequate evidentiary basis with sufficient 

indicia of reliability to support the district court’s consideration of those 

unadjudicated offenses along with the other evidence of Hall’s extensive 

criminal history in making an upward departure. See United States v. Fuentes, 

775 F.3d 213, 220 (5th Cir. 2014); United States v. Harris, 702 F.3d 226, 229-

30 (5th Cir. 2012). Further, there was plausible and reliable evidence in the 

record to support the district court’s determination that Hall had a violent 

criminal history. See United States v. Pacheco-Alvardo, 782 F.3d 213, 220 (5th 

Cir. 2015); Fuentes, 775 F.3d at 220. Therefore, Hall failed to demonstrate that 

the district court committed a clear or obvious error in considering the 

unadjudicated offenses or in characterizing his criminal history as violent. 

Peltier, 505 F.3d 389, 392. 

Hall largely relies on the same arguments made above in contending that 

the upward departure resulted in a substantively unreasonable sentence. He 

also asserts for the first time that the district court should have considered the 

shooting incident occurring two days before his arrest in determining his 

sentence. Hall did not object to the substantive reasonableness of the sentence 

after it was pronounced by the district court. This court requires an objection 

in the district court to the substantive reasonableness of the sentence after it 

had been pronounced to preserve the issue for de novo review. See Peltier, 505 

F.3d at 391-92.1 However, Hall’s sentence is substantively reasonable under 

 

1 The Supreme Court has granted certiorari on the issue whether a formal objection 

after pronouncement of sentence is necessary to avoid plain error review in appellate 

substantive reasonableness review. Holguin-Hernandez v. United States, 746 F.App’x 403

(5th Cir. 2018), cert. granted, 139 S.Ct. 2666, (June 3, 2019) (No. 18-7739). “Absent an 

intervening Supreme Court case overruling prior precedent, we remain bound to follow our 

precedent even when the Supreme Court grants certiorari on an issue.” United States v. 

Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).

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an abuse-of-discretion standard or plain error standard. Id.; Gall v. United 

States, 552 U.S. 38, 51 (2007). 

Whether the sentence was a Guidelines upward departure or a nonGuidelines variance, the reasonableness of the sentence must be considered 

“under the totality of the relevant statutory factors.” United States v. Jones, 

444 F.3d 430, 441 (5th Cir. 2006). As discussed above, the district court did not 

plainly err in considering Hall’s non-adjudicated offenses that were supported 

by reliable evidence and it did not clearly err in determining that Hall had a 

violent criminal history. Contrary to Hall’s argument, the district court 

discussed the 18 U.S.C. § 3553(a) factors as they applied to Hall’s case prior to

determining his sentence. The district court provided Hall with a favorable 

ruling in deciding not to consider the shooting incident in determining his

sentence. Hall’s arguments show no plain or clear error resulting in a 

substantively unreasonable sentence. Further, the reasonableness of the 

departure is supported by Hall’s extensive criminal history, including his 

multiple unscored convictions and pending drug cases, as well as the violent 

nature of many of his offenses. The extent of the departure satisfies the 

§ 3553(a) factors, particularly Hall’s need for adequate deterrence to protect 

the public. Last, the departure is well within the range of departures that have 

been upheld by the court. See United States v. Brantley, 537 F.3d at 348-50; 

Jones, 444 F.3d at 433. Based on the totality of the circumstances, the 120-

month sentence was not substantively unreasonable and did not constitute 

error, plain or otherwise. See Jones, 444 F.3d at 441; Gall, 552 U.S. at 51; 

Peltier, 505 F.3d at 392. 

The sentence is AFFIRMED.

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