IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10387

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MICHAEL DEWAYNE BOTTOMS,

Defendant-Appellant

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:13-CR-147-2

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:*

Michael Dewayne Bottoms pleaded guilty to production and use of a 

counterfeit access device in violation of 18 U.S.C. § 1029, and he was sentenced 

above the advisory guideline range to 72 months of imprisonment, with credit 

for 3 months and 19 days for time already served in state custody on a related 

case from Erath County, Texas, pursuant to U.S.S.G. § 5G1.3(b), for an actual 

total of 68 months and 11 days. He appeals his sentence.

* 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

May 26, 2015

Lyle W. Cayce

Clerk

 

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Bottoms argues that the district court erred in upwardly departing from 

the advisory guideline range of 41 to 51 months pursuant to U.S.S.G. § 4A1.3. 

He does not address the district court’s separate holding that it would award 

the same sentence as a variance. See United States v. Jacobs, 635 F.3d 778, 

(5th Cir. 2011)(upward variance is not the same thing as an upward 

departure). We pretermit the question of whether he therefore has abandoned 

his challenge to the sentence for failing to brief this ground because we 

conclude that his challenge to the sentence as an upward departure fails on 

the merits. See United States v. Despeaux, 384 F. App’x 369 (5th Cir. 

2010)(pretermitting consideration of appellate waiver to address merits); see 

also United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010)(holding that 

failure to adequately brief an issue waives it but addressing the merits 

alternatively). He contends that the district court failed to adequately 

substantiate and explain its reasons for such an extensive departure, and that

the sentence was both procedurally and substantively unreasonable.

Because Bottoms did not challenge in the district court the procedural 

unreasonableness of his sentence, appellate review of that issue is for plain 

error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008). 

Likewise, his lack of objection to the substantive reasonableness of his sentence 

calls for the application of the plain error standard of review. See Puckett v. 

United States, 556 U.S. 129, 134-35 (2009); United States v. Peltier, 505 F.3d 

389, 391-92, 394 (5th Cir. 2007).

The district court provided sufficient reasons for its decision to depart

from the Guidelines, stating that a guideline departure under § 4A1.3 was 

appropriate because Bottoms’s criminal history category substantially 

underrepresented the seriousness of his criminal history or the likelihood that 

he would commit other crimes, based on his repeated acts of drug possession, 

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theft, fraud, and evading arrest. The district court also concluded that a 

sentence of 72 months was necessary and appropriate to address the 

sentencing factors in 18 U.S.C. § 3553(a), including Bottoms’s history and 

characteristics, the need for deterrence, to protect the public, the need for the 

sentence to promote respect for the law, and to provide just punishment. The 

district court noted Bottoms’s extensive criminal history, which gave him 

nearly twice the points needed to place him in category VI. Bottoms has not 

shown that the district court committed any procedural error, plain or 

otherwise, in imposing his sentence. See Lopez-Velasquez, 526 F.3d at 807-08.

Substantively, § 4A1.3(a) expressly authorizes an upward departure 

based on a finding by the district court that a defendant’s criminal history 

category substantially underrepresents the seriousness of the defendant’s 

criminal past or the likelihood that he will commit other crimes. See United 

States v. Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir. 2006). The district 

court expressly made that finding, noting Bottoms’s repeated acts of drug 

possession, theft, fraud, and evading arrest, which gave him nearly twice the 

amount of points necessary to place him in category VI. Bottoms makes no 

argument that these reasons were legally unacceptable, did not advance the 

objectives of § 3553(a), or were not justified by the facts of the case. See ZunigaPeralta, 442 F.3d at 347-48.

Regarding the extent of the departure, the district court departed 

upward 21 months, from the top of the advisory range, 51 months, to 72 

months, not “almost double” as claimed by Bottoms. The record supports the 

district court’s imposition of a 72-month term of imprisonment, well under the 

statutory maximum of 120 months. See Zuniga-Peralta, 442 F.3d at 347-48 

(upholding an upward departure from a range of 27-33 months of 

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imprisonment to a sentence of 60 months). Bottoms has not shown plain error. 

See Peltier, 505 F.3d at 391-92.

Bottoms argues that the district court erred by not giving him sufficient 

credit for serving a state sentence that was relevant conduct under U.S.S.G. 

§ 5G1.3(b). He contends that he was arrested on the Erath County case on 

August 8, 2012, and was continuously in custody until he was taken into 

federal custody on November 13, 2013, making the correct amount of credit 15 

months and 8 days. The district court found that there was nothing in the 

record to support Bottoms’s claim that he was in state custody on the relevant 

offense described in paragraph 59 of the Presentence report (PSR) as of August 

8, 2012. To the contrary, the PSR showed that he was in custody on a separate 

state theft offense as of August 13, 2012. Bottoms does not cite to any evidence 

in the record to support his bare assertion regarding the credit due for his state 

custody. The district court did not clearly err in calculating the amount of 

credit under § 5G1.3(b). See United States v. Caldwell, 448 F.3d 287, 290 (5th 

Cir. 2006).

In a separately filed motion and memorandum in support, Bottoms seeks 

to dismiss his current appointed counsel and to have new appointed counsel 

substituted. He also requests permission to file his own brief to supplement 

the arguments of his appointed counsel. He contends that his appointed 

counsel, John W. Stickels, who also represented him in the district court, 

provided ineffective assistance of counsel in the district court and on appeal. 

He asserts that there has been a total breakdown of communication between 

him and his attorney.

The motion is DENIED. Bottoms has no constitutional right to hybrid 

representation on appeal. See United States v. Ogbonna, 184 F.3d 447, 449 &

n.1 (5th Cir. 1999). His request to substitute appointed counsel was untimely 

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filed after his counsel and the Government filed their briefs on the merits. See

United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). Further, 

Bottoms has not shown that substitute counsel is required by a conflict of 

interest or other most pressing circumstance or would be in the interest of 

justice. See FIFTH CIRCUIT PLAN UNDER THE CRIMINAL JUSTICE ACT, § 5(B); 18 

U.S.C. § 3006A. We generally do not review claims of ineffective assistance of 

counsel on direct appeal. United States v. Isgar, 739 F.3d 829, 841 (5th Cir.), 

cert. denied, 135 S. Ct. 123 (2014).1 

AFFIRMED; MOTION DENIED.

1 Bottoms’s contention that he was not allowed to address the district court concerning 

his sentence is belied by the record.

5

 

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