Case: 11-30281 Document: 00511654504 Page: 1 Date Filed: 11/03/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 3, 2011
No. 11-30281
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JERMAINE RUFFIN,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:10-CR-62-1
Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
Jermaine Ruffin was convicted of providing false statements to a firearms
dealer. See 18 U.S.C. § 922(a)(6). Essentially, Ruffin certified to the dealer that
he was purchasing the gun for himself when, in fact, he was purchasing it for
Ivan Dyer. After purchasing the gun, Ruffin gave it to Dyer. Ruffin, Dyer, and
Thalia Dyer then conspired to rob Ulysses J. Calvey, IV of drugs and money.
During the robbery, Ivan Dyer used the gun to kill Calvey. Ruffin was present
at the scene of the shooting; he helped Dyer clean up the crime scene and dispose
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30281
of the body. Ruffin was charged in state court with conspiracy to commit simple
robbery and being an accessory after the fact to armed robbery and second
degree murder. These state charges against Ruffin were later dismissed.
In the instant appeal, Ruffin challenges his 48-month sentence, an upward
variance from his guidelines range of 8 to 14 months of imprisonment. He
argues that his sentence is substantively unreasonable. We review Ruffin’s
sentence for reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 45-46 (2007).
In sentencing Ruffin, the district court based the variance on the
“outrageous conduct” in the commission of the offense (lying to the firearms
dealer) and in the subsequent offenses (surrounding Calvey’s murder). The
district court explained that it was the “worst case scenario that Congress must
have considered in making it a crime for a person to act as a straw buyer in a
firearms transaction.” There is no factual basis in the record for Ruffin’s
argument that the district court “presupposed” his awareness, at the time he
purchased the gun, that Dyer would use the gun to commit a violent crime. The
district court did not state that it assumed such knowledge on Ruffin’s part, and
it did not base the variance on this assumption. This argument is without merit.
Ruffin’s argument that the district court should have departed upward
pursuant to U.S.S.G. § 4A1.3 instead of varying upward is similarly without
merit. Section 4A1.3 provides for an upward departure “if reliable information
indicates that the defendant’s criminal history category substantially under-
represents the seriousness of the defendant’s criminal history or the likelihood
that the defendant will commit other crimes.” § 4A1.3(a)(1). The district court
did not rely on Ruffin’s prior convictions as a basis for varying upward. In fact,
as already noted, it relied specifically on Ruffin’s conduct after purchasing the
gun. There is no basis in the record for this claim.
Ruffin argues that the district court failed to consider the two and one half
years he spent in state custody as an accessory to the Calvey murder. The
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Case: 11-30281 Document: 00511654504 Page: 3 Date Filed: 11/03/2011
No. 11-30281
district court did, however, note that he was initially charged in state court with
being an accessory after the fact in the Calvey murder case. Ruffin fails to cite
any authority suggesting that the district court was required to consider the
time he spent in state custody on the accessory charge. He has not shown that
his sentence did not account for this factor and that this factor should have
received significant weight. See United States v. Peltier, 505 F.3d 389, 392 (5th
Cir. 2007).
In all, Ruffin has not shown that his sentence “(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.” Id. (internal quotation marks and citation
omitted); United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Thus, he has
not shown that the district court abused its discretion in varying upward. See
Gall, 552 U.S. at 45-46.
AFFIRMED.
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