Case: 17-60405 Document: 00514387910 Page: 1 Date Filed: 03/15/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-60405
United States Court of Appeals
Fifth Circuit
Summary Calendar FILED
March 15, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ANTHONY STRONG, also known as Gary,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Mississippi
USDC No. 1:16-CR-52-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Anthony Strong pleaded guilty to being a felon in possession of a firearm.
The presentence report calculated Strong’s recommended guidelines range of
46 to 57 months in prison. The Government filed a motion for a variance above
the guidelines range. The district court imposed a sentence of imprisonment
of 80 months and a 3-year term of supervised release.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-60405 Document: 00514387910 Page: 2 Date Filed: 03/15/2018
No. 17-60405
Strong challenges his conviction arguing that the district court failed to
comply with Federal Rule of Criminal Procedure 11(b)(1)(M). The district court
did not inform Strong of the possibility of a variance from the advisory
Sentencing Guidelines. As Strong concedes, because he did not object in the
district court to its failure to comply with Rule 11, review is for plain error.
United States v. Vonn, 535 U.S. 55, 59 (2002); Puckett v. United States, 556
U.S. 129, 135 (2009). To establish that his substantial rights were affected,
the defendant “must show a reasonable probability that, but for the [Rule 11]
error, he would not have entered the plea.” United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004). Considering the entire record, Strong has not
shown that the district court’s Rule 11 error would have caused him to go to
trial rather than plead guilty. See Dominguez Benitez, 542 U.S. at 83; Vonn,
535 U.S. at 59.
Strong challenges his above-guidelines sentence as substantively
unreasonable. A non-guidelines sentence is unreasonable if it “(1) does not
account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” United States v.
Chandler, 732 F.3d 434, 437 (5th Cir. 2013) (internal quotation marks and
citation omitted); Gall v. United States, 552 U.S. 38, 49-51 (2007). Strong
argues that his violent nature was adequately represented in the guidelines
calculation and that the district court considered an improper factor in varying
from the recommended range. In United States v. Williams, 517 F.3d 801, 809
(5th Cir. 2008), we rejected Strong’s argument. Strong has presented nothing
to show that the district court erred in giving significant weight to his violent
record in finding that he was a danger to others. See 18 U.S.C. § 3553(a); Gall,
552 U.S. at 49-51; Chandler, 732 F.3d at 437; Williams, 517 F.3d at 810-11.
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Case: 17-60405 Document: 00514387910 Page: 3 Date Filed: 03/15/2018
No. 17-60405
Strong also argues that the degree of the upward variance was
unreasonable under the totality of the circumstances. Based on the totality of
the circumstances, and giving deference to the district court’s determination
that Strong’s violent history warranted the extent of the variance, the sentence
was substantively reasonable. See United States v. McElwee, 646 F.3d 328,
337 (5th Cir. 2011).
AFFIRMED.
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