Case: 12-10944 Document: 00512308148 Page: 1 Date Filed: 07/15/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2013
No. 12-10944
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
PRENTICE HOLLINGSWORTH,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:12-CR-1-1
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Prentice Hollingsworth appeals the 72-month, above-guidelines sentence
imposed following his guilty plea conviction of failing to register as a sex
offender. As he did in the district court, Hollingsworth argues that the district
court incorrectly calculated his criminal history score. He also argues for the
first time on appeal that the district court did not adequately explain the
selected sentence and that the sentence is substantively unreasonable.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-10944
Hollingsworth’s challenge to his criminal history calculation is two-fold.
First, he argues that the district court erroneously treated his prior convictions
of promoting prostitution and of compelling prostitution as separate offenses.
Second, he argues that those two convictions, as well as his conviction of
communicating with a minor for immoral purposes and assault, were too old to
be assigned criminal history points. The Government concedes that
Hollingsworth’s convictions of promoting prostitution and of compelling
prostitution were too old to be assigned criminal history points, but maintains
that the three points assigned to the remaining conviction were proper. The
Government argues that any error in calculating Hollingsworth’s criminal
history score was harmless.
Because Hollingsworth properly preserved the issue for appeal, we review
the district court’s interpretation or application of the Sentencing Guidelines de
novo, and its factual findings are reviewed for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). There is no need to
determine whether the addition of three criminal history points based on
Hollingsworth’s conviction of communicating with a minor for immoral purposes
and assault was proper under U.S.S.G. §§ 4A1.1(a), 4A1.2(e). Even if the district
court erred by adding nine criminal history points to Hollingsworth’s criminal
history score based on the three disputed convictions, any error is harmless. See
United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012); United States v.
Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010).
The district court imposed a non-guidelines sentence after considering the
18 U.S.C. § 3553(a) factors, most notably the nature and circumstances of the
offense, Hollingsworth’s extensive criminal history that reflected a habitual
pattern of sex offenses involving minors and violence, and the need for the
sentence imposed to promote respect for the law, to afford adequate deterrence
to criminal conduct, and to protect the public. The record reflects that the
district court would have imposed the same sentence even if the guidelines range
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No. 12-10944
was incorrect. Accordingly, any error in calculating Hollingsworth’s criminal
history was harmless. See Richardson, 676 F.3d at 511.
Hollingsworth argues for the first time on appeal that the sentence
imposed was procedurally and substantively unreasonable because the district
court did not explain with particularity how it arrived at a 72-month sentence
as a reasonable sentence and did not address Hollingsworth’s nonfrivolous
arguments in favor of a lower sentence. He also argues that the sentence is
unreasonable because it over-emphasized his criminal history, which was
already taken into account by the Guidelines.
Because Hollingsworth did not object to the district court’s alleged failure
to adequately explain the sentence or to the reasonableness of the sentence
below, plain error review applies. See United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009). To show plain error, Hollingsworth must show a
forfeited error that is clear or obvious and that affects his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
this court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
“Congress requires the sentencing court to state ‘the reasons for its
imposition of the particular sentence.’” Mondragon-Santiago, 564 F.3d at 362
(quoting § 3553(c)). While sentences within the Guidelines require “little
explanation,” the district court must more thoroughly articulate its reasons
when it imposes a non-guidelines sentence. United States v. Mares, 402 F.3d
511, 519 (5th Cir. 2005). There is no error if the sentencing record reveals the
reasons for the sentence imposed and permits effective review by the appellate
court. United States v. Key, 599 F.3d 469, 474-75 (5th Cir. 2010).
The sentencing record reflects that the district court sufficiently
articulated its reasons for imposing the non-guidelines sentence. Specifically,
the district court stated that it had considered Hollingsworth’s habitual patterns
of sex offenses, violence, and failing to obey the law. Although Hollingsworth
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argues that the district court’s reliance on his prior offenses was inappropriate
because his criminal history was already taken into account in the guidelines
range, district courts may consider factors already incorporated into guidelines
sentencing calculations to support a non-guidelines sentence. See United States
v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008). Because the district court
sufficiently articulated its reasons for imposing the non-guidelines sentence,
Hollingsworth has shown no error, plain or otherwise. See Key, 599 F.3d at 474.
Hollingsworth’s arguments do not show a clear error of judgment on the
district court’s part in balancing the § 3553(a) factors. United States v. Peltier,
505 F.3d 389, 392 (5th Cir. 2007). Instead, they constitute a mere disagreement
with the district court’s weighing of those factors. Given the significant
deference that is due to a district court’s consideration of the § 3553(a) factors
and the district court’s reasons for its sentencing decision, Hollingsworth has not
demonstrated that the sentence is substantively unreasonable. See Gall v.
United States, 552 U.S. 38, 50-53 (2007); Brantley, 537 F.3d at 349. Although
Hollingsworth’s 72-month sentence is 39 months greater than the top of the 27
to 33-month guidelines range advocated by Hollingsworth on appeal, this court
has upheld variances considerably greater than the increase to his sentence. See
Brantley, 537 F.3d at 348-50; United States v. Herrera-Garduno, 519 F.3d 526,
531-32 (5th Cir. 2008); United States v. Jones, 444 F.3d 430, 433, 441-42 (5th
Cir. 2006).
AFFIRMED.
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