Case: 22-30029 Document: 00516487697 Page: 1 Date Filed: 09/28/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-30029 FILED
Summary Calendar September 28, 2022
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Karen Duhon,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:18-CR-360-1
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Karen Duhon appeals of the sentence imposed following her guilty-
plea conviction for mail fraud. The district court varied upwardly from the
guidelines range of imprisonment and sentenced her to 60 months in prison.
*
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opinion should not be published and is not precedent except under the limited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.
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No. 22-30029
Duhon argues that the district court erred in balancing the 18 U.S.C.
§ 3553(a) sentencing factors by giving too much consideration to the victim
impact statements, given that they presented no new facts, and disregarding
the Government’s recommendation of a below-guidelines sentence. She also
contends that the district court’s finding that the offense involved massive
theft was based on facts that were “already taken into account by the
guidelines.” According to Duhon, it was abuse of discretion to vary upwards
from “the guidelines range in light of the very substantial mitigating factors,”
such as her need for ongoing treatment for aggressive breast cancer and her
often being “the sole provider for her granddaughters, one of whom has an
inoperable brain tumor.” While she also asserts that, because the
Government recommended a below-guidelines sentence in accordance with
the plea agreement, imposing an above-guidelines sentence could have a
“‘chilling effect’ on the plea process,” this argument does not extend beyond
a conclusory assertion and is deemed abandoned for insufficient briefing. See
United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010); Beasley v.
McCotter, 798 F.2d 116, 118 (5th Cir. 1986); see also Fed. R. App.
P. 28(a)(8)(A).
This court reviews preserved challenges to the substantive
reasonableness of a sentence for abuse of discretion. See United States v.
Vargas, 21 F.4th 332, 334 (5th Cir. 2021). Although the Government argues
that we should review Duhon’s specific arguments for plain error because
they were not presented to the district court, we decline to resolve the
appropriate standard of review because Duhon has failed to show that she can
prevail under any potentially applicable standard. See United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
The record establishes that the district court gave fact-specific reasons
for varying upward and that its reasons were consistent with the 18 U.S.C.
§ 3553(a) factors. See United States v. Smith, 440 F.3d 704, 707 (5th Cir.
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No. 22-30029
2006). The district court could consider factors that were incorporated by
the Sentencing Guidelines in deciding that an upward variance was proper.
See United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008); United States
v. Williams, 517 F.3d 801, 809-11 (5th Cir. 2008). The district court was in a
superior position to determine the importance of particular facts under
§ 3553(a), and we must uphold the sentence imposed even if we reasonably
could hold that a different sentence was proper. See Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Campos-Maldonado, 531 F.3d 337, 339
(5th Cir. 2008).
Furthermore, the record does not show that the district court
committed a clear error of judgment in balancing the sentencing factors by
incorrectly assuming other family members could care for Duhon’s
granddaughter or that the Bureau of Prisons could adequately provide post-
treatment follow-up care for Duhon’s breast cancer. Duhon is not entitled
to relief merely because she believes that the § 3553(a) factors would have
been equally served by a lesser sentence and that the district court erred in
weighing the § 3553(a) factors. See Gall, 552 U.S. at 51. Under the totality
of the circumstances, the degree of the variance was not so disproportionate
so as to overcome the factors that supported its imposition. See Brantley,
537 F.3d at 349.
Thus, the district court’s judgment is AFFIRMED.
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