USA v. Steven Gibson

Filing

UNPUBLISHED OPINION FILED. [09-20703 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 10/05/2010 for Appellant Steven Anthony Gibson [09-20703]

USA v. Steven Gibson

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Case: 09-20703

Document: 00511232830

Page: 1

Date Filed: 09/14/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20703 S u m m a r y Calendar September 14, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. S T E V E N ANTHONY GIBSON, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-173-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* S t e v e n Anthony Gibson appeals the above-guidelines sentence imposed fo llo w in g his guilty-plea conviction for making a false claim upon or against an a g e n c y of the United States in violation of 18 U.S.C. § 287. Gibson argues that h is sentence is procedurally and substantively unreasonable because the district c o u r t did not consider whether an upward departure under the Guidelines was a p p r o p r ia te before imposing an upward variance, because the district court did n o t adequately explain the extent of the upward variance, and because the
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-20703

Document: 00511232830 Page: 2 No. 09-20703

Date Filed: 09/14/2010

s e n te n c e was greater than necessary to achieve the goals of sentencing. He also a r g u e s that his case should be remanded for correction of the written judgment p u r s u a n t to Federal Rule of Criminal Procedure 36 because the written ju d g m e n t does not reflect a remittance of the $100 special assessment. Sentences, whether inside or outside the advisory guidelines range, are r e v ie w e d under an abuse of discretion standard for procedural error and s u b s t a n t iv e reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). Gibson's argument that the district court should have first considered whether a n upward departure under the Guidelines was appropriate before imposing an u p w a r d variance, however, is raised for the first time on appeal. Accordingly, w e review that argument for plain error. See United States v. Peltier, 505 F.3d 3 8 9 , 391-92 (5th Cir. 2007). Gibson has not shown clear or obvious error with r e s p e c t to his argument that the district court was required to consider an u p w a r d departure pursuant to U.S.S.G. §4A1.3 prior to imposing an upward v a r i a n c e from the sentencing guidelines range. See United States v. MejiaH u e r ta , 480 F.3d 713, 723 (5th Cir. 2007); United States v. Smith, 440 F.3d 704, 7 0 7 (5th Cir. 2006). We also note that, as in Mejia-Huerta, the upward variance in this case was based not only on Gibson's criminal history but on numerous 18 U .S .C . § 3553(a) factors, including the need to deter future criminal conduct and t h e need to protect the public from his crimes. See Mejia-Huerta, 480 F.3d at 723. T h e district court stated reasons for its upward variance, including the e x t e n s iv e n e s s of Gibson's criminal history, the fact that his crimes were getting m o r e serious, the fact that he had not successfully completed parole or probation, a n d the need to protect the public from his crimes. In addition, the district court c o n s id e r e d Gibson's physical health, his mental health, and his drug addiction, a n d it concluded that many of his health problems stemmed from his drug a d d ic tio n .

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Case: 09-20703

Document: 00511232830 Page: 3 No. 09-20703

Date Filed: 09/14/2010

G ib s o n was sentenced to 36 months of imprisonment, a 15-month upward v a r ia n c e from the top of his 15-21 month advisory guidelines sentencing range. W e have upheld variances greater than the increase to Gibson's sentence. See United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008); United States v . Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006); United States v. Smith, 417 F .3 d 483, 492-93 & n.40 (5th Cir. 2005). In sum, the district court did not abuse its discretion. The sentence im p o s e d "was reasonable under the totality of the relevant statutory factors." Brantley, 537 F.3d at 349. Finally, although the district court mistakenly stated d u r in g the sentencing proceeding that the Government had moved to remit the s p e c ia l assessment, the Government had not so moved, and, in any event, the d is t r ic t court did not order the remittance of the special assessment. Accordingly, the district court's judgment is AFFIRMED.

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