USA v. Grenstedt Winters

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USA v. Grenstedt Winters Doc. 0 Case: 09-30941 Document: 00511190377 Page: 1 Date Filed: 07/30/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-30941 S u m m a r y Calendar July 30, 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. G R E N S T E D T M. WINTERS, 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 Western District of Louisiana U S D C No. 6:08-CR-175-1 B e fo r e SMITH, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* G r e n s t e d t M. Winters appeals the 27-month sentence imposed following h is guilty plea conviction for theft of public money in violation of 18 U.S.C. 641. Winters's within-guidelines sentence was imposed consecutively to an u n d is c h a r g e d , five-year state sentence. He contends that the consecutive nature o f his sentence rendered it substantively unreasonable because it was greater t h a n necessary to achieve the sentencing goals set forth in 18 U.S.C. 3553(a). Specifically, Winters argues that the district court overstated his criminal 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 09-30941 Document: 00511190377 Page: 2 No. 09-30941 Date Filed: 07/30/2010 h is t o r y , overemphasized the need to afford adequate deterrence to criminal c o n d u c t , and failed to account for the need to provide restitution. S e n t e n c e s are reviewed under an abuse of discretion standard for p r o c e d u r a l error and substantive reasonableness. Gall v. United States, 552 U .S . 38, 51 (2007). Winters does not argue that the district court committed any p r o c e d u r a l error; thus, we need only review the substantive reasonableness of t h e sentence. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). "[A] rebuttable presumption of reasonableness . . . applies to a consecutive s e n te n c e imposed within the parameters of the advisory federal guidelines." U n ite d States v. Candia, 454 F.3d 468, 473 (5th Cir. 2006). The presumption of r e a s o n a b le n e s s includes "an inference that the district court considered the a p p r o p r ia te sentencing factors" set forth in 3553(a) in determining whether to im p o s e a concurrent or consecutive sentence. Candia, 454 F.3d at 474; 18 U.S.C. 3584(b). "The presumption is rebutted only upon a showing that the sentence d o e s not account for a factor that should receive significant weight, it gives s ig n ific a n t weight to an irrelevant or improper factor, or it represents a clear e r r o r of judgment in balancing sentencing factors." United States v. Cooks, 589 F .3 d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010). T h e within-guidelines sentence is entitled to a presumption of r e a s o n a b le n e s s . See Candia, 454 F.3d at 473. Winters's disagreement with the w e ig h t the district court gave to his criminal history and the need to afford a d e q u a t e deterrence is insufficient to rebut that presumption. See Cooks, 589 F .3 d at 186. Winters engaged in sustained criminal activity before and after he c o m m it t e d the instant offense. Shortly before he committed the instant offense, W in t e r s was sentenced to a total of 18 months in jail and five years of im p r is o n m e n t , suspended. Nevertheless, he continued to engage in criminal a c t iv it y . Moreover, the district court's implicit decision to give more weight to t h o s e factors than to the need to provide restitution was not unreasonable in lig h t of Winters's extensive criminal history and pattern of recidivism. See 2 Case: 09-30941 Document: 00511190377 Page: 3 No. 09-30941 Date Filed: 07/30/2010 C a n d ia , 454 F.3d at 476. As Winters has not demonstrated that the sentence w a s an abuse of discretion, the judgment of the district court is AFFIRMED. 3

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