IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2010
No. 09-30137
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MORRIS BUTLER, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:08-CR-54-2
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Morris Butler, Jr., pleaded guilty to conspiracy to commit mail fraud.
After departing upward one criminal history level to a Criminal History
Category of VI and four offense levels pursuant to U.S.S.G. § 4A1.3, the district
court sentenced Butler to 48 months in prison. Had the district court not
imposed the upward departure, Butler faced a guideline range of 24 to 30
months. Butler contends that his sentence was unreasonable.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-30137
When reviewing sentences, “this court must first consider whether the
district court made a significant procedural error. If no procedural error exists,
the court then considers the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard, irrespective of whether the sentence falls
within the Guidelines range.”1
Butler focuses his appeal on procedural unreasonableness – maintaining
that the district court failed to consider all the factors of 18 U.S.C. § 3553(a) in
imposing the enhancement. Butler further complains that his sentence is not
proportionate to those received by his codefendants, in violation of § 3553(a)(6).
Butler did not raise any of his challenges to the upward departure in the
district court, so we review his claims for plain error.2 For plain error, the
appellant must show a forfeited error that is clear or obvious and that affects his
substantial rights.3 If the appellant 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.4
1
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (citations and
internal quotations omitted).
2
See United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007) (“[W]e have
held that defendants sentenced before Booker forfeited their right to
resentencing if they did not preserve the Sixth Amendment error in the district
court. Booker did not change the imperative to preserve error in that instance
or here. . . . We therefore review here for plain error.”).
3
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
4
Id.
2
No. 09-30137
The sentencing guidelines allow a district court to depart upwardly or
downwardly based on the inadequacy of the criminal history category.5 This
court has noted that, because “the court’s authority to depart derives from the
Guidelines themselves, a sentence supported by a departure is . . . a ‘Guideline
sentence.’” 6 We review for abuse of discretion when “evaluating both a decision
to depart and the extent of the departure . . . . In assessing the extent of a
departure, we continue to look to our pre-Booker case law for guidance.” 7 The
district court does not abuse its discretion when upwardly departing “if the
court’s reasons for departing 1) advance the objectives set forth in 18 U.S.C. §
3553(a)(2) and 2) are justified by the facts of the case.”8
The district court in this case followed U.S.S.G. § 4A1.3 when determining
the sentencing range and gave a more-than-sufficient explanation for its decision
upwardly to depart. Indeed, the court based its sentence on the factors set forth
in § 3553(a), including Butler’s history and characteristics, the need to promote
respect for the law, the need for adequate deterrence, and the need to protect the
5
See U.S.S.G. § 4A1.3.
6
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (citing United
States v. Mares, 402 F.3d 511, 519 n.7 (5th Cir. 2005) (“We use the term
‘non-Guideline’ sentence to distinguish it from a Guidelines sentence which
includes a sentence that has been adjusted by applying a ‘departure’ as allowed
by the Guidelines.”)). Guidelines sentences – like the one imposed upon Butler
– require little explanation from the district court. See Mares, 402 F.3d at 519
& n.7.
7
Smith, 440 F.3d at 707 (citations omitted).
8
United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006)
(citations and quotations omitted).
3
No. 09-30137
public from future crimes by Butler. The district court focused on Butler’s
multiple prior felony convictions, which – as in this case – involved committing
theft by check. The court also considered Butler’s habit of unsuccessfully
completing probation and parole terms. Because the upward departure under
§ 4A1.3 advanced the objectives in § 3553(a) and is justified by the facts of the
case, the district court did not commit reversible error.
Butler further argues that the district court procedurally erred by giving
him a longer sentence than his co-conspirators. He claims that the court did not
follow the guidance of 18 U.S.C. 3553(a)(6), which admonishes district judges to
consider “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.” Butler had
two partners in crime, and he alleges that they received lower sentences than he
did. Butler, though, has not shown that those defendants had “similar records.”
In fact, the appellate record in this case says nothing about the reasons for the
other criminals’ sentences. We have held in a persuasive unpublished opinion
that we should uphold the district court’s sentence where “[t]he record is silent
regarding the reasons for [the prisoner’s] co-defendant’s sentence and whether
the defendants are similarly situated with respect to criminal history and
circumstances.”9 The district court here did not reversibly err.
Even if the district court had committed a procedural error – which it did
not – Butler’s case comes before us on plain error review, and he cannot satisfy
9
United States v. Adkins, 242 F. App’x. 194, 195 (5th Cir. 2007)
(unpublished).
4
No. 09-30137
the third prong. Specifically, he has not described – much less proved – how a
better explanation would have changed his 48-month sentence.10
Butler does not on appeal specifically address the substantive
reasonableness of his sentence, nor did he object at trial to the length of the
sentence. Under the totality of the circumstances in this case – and particularly
in light of the policy statements of § 3553(a) – nothing indicates that Butler’s 48-
month sentence is anything but reasonable, and the sentence is within the scope
of departures previously upheld by this court.11
AFFIRMED.
10
See United States v. Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir.
2009) (“[T]o show substantial prejudice, the defendant must prove that the error
affected the sentencing outcome.”).
11
See, e.g., United States v. Simkanin, 420 F.3d 397, 419 (5th Cir. 2005)
(upholding upward departure from 55 to 84 months and compiling cases); c.f.
United States v. Herrera-Garduno, 519 F.3d 526, 532 (5th Cir. 2008) (compiling
cases upholding sentences that “deviated” upwardly from the advisory
guidelines, a somewhat different but still analogous situation to Butler’s).
5