USA v. Charles Young

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USA v. Charles Young

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Case: 09-31113

Document: 00511174304

Page: 1

Date Filed: 07/15/2010

REVISED JULY 15, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

FILED
N o . 09-31113 S u m m a r y Calendar June 22, 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 H A R L E S R. YOUNG, 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. 3:09-CR-9-1

B e fo r e JOLLY, WIENER, and ELROD, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Charles R. Young appeals his 137-month sentence im p o s e d following his guilty plea to possession with intent to distribute five g r a m s or more of cocaine base. The district court departed upward

in c r e m e n t a lly from criminal history category II to category VI, which resulted in a guideline range of 110 to 137 months. Young argues that his sentence is p r o c e d u r a lly and substantively unreasonable.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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P u r s u a n t to Gall v. United States, 552 U.S. 38, 51 (2007), we engage in a b ifu r c a t e d analysis of the sentence imposed. United States v. Delgado-Martinez, 5 6 4 F.3d 750, 752 (5th Cir. 2009). Our first query is whether the district court c o m m it t e d a "significant procedural error," such as miscalculating the advisory g u id e lin e s range. Id. at 751-53. If the district court's decision is procedurally s o u n d , we then consider "the substantive reasonableness of the sentence im p o s e d under an abuse-of-discretion standard . . . tak[ing] into account the t o t a lit y of the circumstances." Gall, 552 U.S. at 51. In exercising this bifurcated p r o c e s s , we review the district court's application of the Guidelines de novo and it s factual findings for clear error. United States v. Jeffries, 587 F.3d 690, 692 (5 t h Cir. 2009). Y o u n g asserts that his sentence is procedurally unreasonable because the c o u r t's decision to depart upward resulted from its mistaken belief that it had n o authority to account for the sentencing disparities between crack cocaine and p o w d e r cocaine. As Young raised the issue in the district court, he has preserved t h e issue for review. Young's assertion, however, is belied by the record. In a d d r e s s in g Young's objection to the calculation of his base offense level, the d is t r ic t court correctly observed that the appropriate base offense level was the o n e set forth in the United States Sentencing Guidelines and that the court's h a n d s were tied as far as the base offense level calculation went. At no point did t h e district court indicate a belief that it had no authority to impose a lower g u id e lin e sentence if it chose to do so. Morever, it is clear from the record that t h e district court's decision to upwardly depart was based on Young's extensive c r im in a l history, the likelihood of recidivism, and the need to protect the public. Y o u n g maintains that the district court committed a second procedural e r r o r by basing its decision to depart upward almost exclusively on his arrest r e c o r d . Because Young did not raise this issue in the district court, our review is for plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

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T h e consideration of prior arrests, without more, is specifically prohibited b y the Guidelines as a ground for an upward departure. U.S.S.G. § 4A1.3(a)(3); U n ite d States v. Jones, 444 F.3d 430, 434 (5th Cir. 2006). The record indicates, h o w e v e r , that the district court's statements regarding Young's arrests were m e r e ly a part of the court's recitation of Young's lengthy and often violent c r im in a l history and its determination that his criminal history category was u n d e r r e p r e s e n te d . It is apparent from the record that the departure was based o n more than the mere fact of Young's arrests. E v e n if it is assumed that Young's arrest record was a factor in the district c o u r t's decision to depart upward, the court imposed an alternative sentence of 1 3 7 months as a variant sentence. This court has not yet determined whether p r io r arrests, without more, may be factored into a non-Guidelines sentence p u r s u a n t to § 3553(a), and we need not do so now. See United States v.

L o p e z -V e la s q u e z , 526 F.3d 804, 807 (5th Cir. 2008). As noted above, Young's v a r ia n t sentence was based on more than his arrest record alone. Accordingly, t h e district court committed no procedural error. Y o u n g next contends that his 137-month sentence is substantively u n r e a s o n a b le . A sentence that results from a guideline-authorized upward d e p a r t u r e , as is the case here, is considered to be a guideline sentence. See U n ite d States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006). Reasonableness r e v ie w , in the context of a guidelines departure, requires us to evaluate both "the d is t r ic t court's decision to depart upwardly and the extent of that departure for a b u s e of discretion." United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2 0 0 6 ) (internal quotation marks and citation omitted). Because Young did not o b je c t to the substantive unreasonableness on the grounds that he advances on a p p e a l, however, our review is for plain error. See United States v. Peltier, 505 F .3 d 389, 390-92 (5th Cir. 2007). T h e district court gave lengthy, detailed reasons for its departure, noting t h e seriousness of Young's offense, the seriousness of his involvement in the drug 3

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t r a ffic k in g culture in general, his violent criminal history, the need to promote r e s p e c t for the law, and the need to protect the public from future crimes. See U n ite d States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Young's disagreement w it h the district court's assessment of his sentence is insufficient to show that it is unreasonable. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2 0 0 6 ). AFFIRMED.

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