United States v. Ivory Harris

Case: 17-60096 Document: 00514262459 Page: 1 Date Filed: 12/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 17-60096
Fifth Circuit

FILED
Summary Calendar December 6, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee

v.

IVORY LEE HARRIS,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:16-CR-30-4

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Ivory Lee Harris appeals the sentence imposed following his guilty plea
conviction for conspiracy to commit fraud with immigration documents. The
district court sentenced him above the guidelines range of 12 to 18 months of
imprisonment to 42 months of imprisonment and three years of supervised
release. Harris contends that his sentence is substantively and procedurally
unreasonable and that the Government breached the plea agreement.

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60096 Document: 00514262459 Page: 2 Date Filed: 12/06/2017

No. 17-60096

The district court gave a “thorough justification” for the variance in this
case. United States v. McElwee, 646 F.3d 328, 344 (5th Cir. 2011). The district
court cited the scope of the scheme, Harris’s status as a police officer, the
importance of the false police reports created by Harris to the scheme, Harris’s
use of an unwitting police officer and failure to vet the visa applicants, and the
harm done to the City of Jackson and its police department. The extent of the
variance, 24 months above the guidelines maximum of 18 months, is within
the range of variances we have upheld. See id. at 345. Given the significant
deference that is due to a district court’s consideration of the 18 U.S.C.
§ 3553(a) factors, see Gall v. United States, 552 U.S. 38, 51 (2007), and the
district court’s reasons for its sentencing decision, Harris has not
demonstrated that the sentence is substantively unreasonable, see McElwee,
646 F.3d at 344-45.
Harris waived by virtue of inadequate briefing his claim that the district
court failed to adequately explain the sentence. See United States v. Scroggins,
599 F.3d 433, 446-67 (5th Cir. 2010); United States v. Reagan, 596 F.3d 251,
254 (5th Cir. 2010). Even if this claim is not waived, it fails under the abuse-
of-discretion standard of review. See Gall, 552 U.S. at 51. The district court
provided a “compelling” justification for the variance by citing the aggravating
factors that it found warranted a sentence above the guidelines range. See
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
At sentencing, the Government complied with its promise in the plea
agreement to “recommend that the Court impose a sentence within the lower
25% of the applicable range.” No reasonable reading of the plea agreement
would prohibit the Government from arguing on appeal that the above-
guidelines sentence is reasonable. See United States v. Cantu, 185 F.3d 298,
304 (5th Cir. 1999).
The judgment of the district court is AFFIRMED.

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