Case: 21-50344 Document: 00516107238 Page: 1 Date Filed: 11/24/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 24, 2021
No. 21-50344
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Johnny Thomas Hamby,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-352-1
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Johnny Thomas Hamby appeals his above-guidelines sentence of 10
years for being a felon in possession of a firearm. He contends that the
sentence was substantively unreasonable because the district court’s stated
reasons, including its reliance on deterrence and protecting the public from
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-50344 Document: 00516107238 Page: 2 Date Filed: 11/24/2021
No. 21-50344
future crimes, was insufficient to support the court’s significant variance
from the guidelines range.
We review Hamby’s sentence for reasonableness for an abuse of
discretion in light of 18 U.S.C. § 3553(a)’s sentencing factors. See Gall
v. United States, 552 U.S. 38, 51-52 (2007). In so doing, we consider “the
totality of the circumstances, including the extent of any variance from the
[g]uidelines range,” to determine whether the § 3553(a) factors support the
sentence, United States v. Fraga, 704 F.3d 432, 440 (5th Cir. 2013) (internal
quotation marks and citation omitted). Although “[a] major deviation from
the Guidelines range requires a greater justification than a minor one,” the
district court in the instant case gave such justification. Id.; see also United
States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
The record does not show that the district court failed to account for
a factor that should have received significant weight, gave significant weight
to an irrelevant or improper factor, or made a clear error of judgment in
balancing the sentencing factors. See United States v. Diehl, 775 F.3d 714, 724
(5th Cir. 2015). Further, the district court articulated “individualized, case-
specific reasons” that justified the higher sentence. Id. (internal quotation
marks and citation omitted). Namely, the district court stated that the
sentence it gave was necessary to afford adequate deterrence to criminal
conduct, given that Hamby committed the instant offense just 11 days after
serving 8 years on a 16-year sentence and had not taken advantage of the
opportunities to make positive changes in his life. Also, Hamby’s recidivism
implicated the need to protect the public from Hamby’s further crimes, given
that Hamby’s criminal behavior began at age 18; he had been in prison for all
but about a year over the course of 26 years; and he had five felony
convictions.
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Case: 21-50344 Document: 00516107238 Page: 3 Date Filed: 11/24/2021
No. 21-50344
Hamby’s arguments amount to no more than a request for this court
to reweigh the statutory sentencing factors, which we will not do. See United
States v. Hernandez, 876 F.3d 161, 166-67 (5th Cir. 2017).
AFFIRMED.
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