USA v. Calvin Bethley

Filing

UNPUBLISHED OPINION FILED. [09-30915 Affirmed] Judge: WG , Judge: ECP , Judge: CH. Mandate pull date is 01/13/2011 for Appellant Calvin Bethley [09-30915]

USA v. Calvin Bethley ase: 09-30915 C

Document: 00511331409 Page: 1 Date Filed: 12/23/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30915 S u m m a r y Calendar December 23, 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. C A L V I N BETHLEY, 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 Middle District of Louisiana U S D C No. 3:08-CR-182-1

B e fo r e GARWOOD, PRADO and HAYNES, Circuit Judges. P E R CURIAM:* C a lv in Bethley appeals the sentence he received in September 2009 fo llo w in g his guilty-plea conviction for escape, in violation of 18 U.S.C. § 751(a). Specifically, he challenges the district court's decision to depart upwardly to 60 m o n th s , pursuant to U.S.S.G. § 4A1.3. B e t h le y did not specifically object to the district court's methodology in c a lc u la t in g his sentence, and review is therefore for plain error only. See United S ta te s v. Jones, 489 F.3d 679, 681 (5th Cir. 2007). To demonstrate plain error,
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-30915 Document: 00511331409 Page: 2 Date Filed: 12/23/2010 No. 09-30915 a n appellant must show a forfeited error that is clear or obvious and that affects h is substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this court has the discretion to correct t h e error but will do so only if it seriously affects the fairness, integrity, or public r e p u t a tio n of judicial proceedings. Id.; see also United States v. Ellis, 564 F.3d 3 7 0 , 377-79 (5th Cir.) (explaining that, on plain error review, the legal error m u s t be obvious and not subject to reasonable debate and that "[n]ot every error t h a t increases a sentence need be corrected by a call upon plain error doctrine"), c e r t. denied, 130 S. Ct. 371 (2009). Even assuming, arguendo only, that the d is t r ic t court's use of § 4A1.3 to depart upwardly both as to his criminal history c a t e g o r y (to a score of VI) and also as to his offense level amounted to error, we n e v e r t h e le s s conclude that such does not constitute a clear or obvious error, and t h a t failure to afford appellate relief in respect to such action by the district c o u r t does not seriously affect the fairness, integrity or public reputation of ju d ic ia l proceedings. Bethley contends that the extent of the upward departure in his case was u n s u p p o r t a b ly extreme, urging that a sentence of 60 months, the statutory m a x im u m and more than 400% of the high end of the original guidelines range, w a s unreasonable. He argues that a severe sentence was unwarranted because h e committed the least egregious form of escape, failure to report to a halfway h ouse. T h e extent of a departure is reviewed for an abuse of discretion. See U n ite d States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). Bethley has n o t demonstrated an abuse of discretion on the district court's part. This court h a s upheld upward departures of the same extent or greater magnitudes. See, e .g ., United States v. Jones, 444 F.3d 430, 433, 442 (5th Cir. 2006); United States v . Daughenbaugh, 49 F.3d 171, 174 (5th Cir. 1995). Here, the district court in d ic a te d that a 60-month sentence was sufficient to account for the 18 U.S.C.

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Case: 09-30915 Document: 00511331409 Page: 3 Date Filed: 12/23/2010 No. 09-30915 § 3553(a) factors and the reasons underlying its decision to depart, and the court p r o v id e d individualized, case-specific reasons for imposing the sentence. T h e district court's judgment is AFFIRMED.

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