USA v. Joseph Bernard

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USA v. Joseph Bernard

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Case: 09-31181

Document: 00511208864

Page: 1

Date Filed: 08/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-31181 S u m m a r y Calendar August 19, 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. J O S E P H RAY BERNARD, 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-333-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* J o s e p h Ray Bernard was convicted of being a felon in possession of a fir e a r m and ammunition and was sentenced to serve 60 months in prison. We a r e now presented with Bernard's appeal of his sentence, which was the result o f the district court's conclusion that an upward variance from the applicable g u id e lin e s range of 30-37 months in prison was apt. Under Bernard's view, the d is t r ic t court committed significant procedural error because the deviation was g r o u n d e d in its erroneous factual findings concerning his dangerousness and 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-31181

Document: 00511208864 Page: 2 No. 09-31181

Date Filed: 08/19/2010

c o n n e c t io n between the firearm underlying the offense and illegal drugs. Next, h e argues that his sentence is substantively unreasonable because it is nearly d o u b le the sentence provided by the applicable guidelines range and is u n r e a s o n a b le under the circumstances. Finally, he contends that the district c o u r t gave inadequate reasons to support its choice of sentence. W e review sentences for reasonableness in light of the factors set out in 1 8 U.S.C. § 3553(a), utilizing an abuse of discretion standard that affords d e fe r e n c e to the district court's superior position to make sentencing d e t e r m in a t io n s . Gall v. United States, 552 U.S. 38, 50-51 (2007). Under that s t a n d a r d , we cannot say that the sentence imposed was unreasonable, and our r e v ie w of the record refutes Bernard's arguments. The district court's sentencing decision was not based on erroneous factual fin d in g s . Rather, the transcript of the sentencing hearing shows that the district c o u r t was familiar with the facts of the case and found that those facts w a r r a n te d a sentence greater than that called for under the pertinent guidelines r a n g e because, inter alia, the public needed to be protected from Bernard. Contrary to Bernard's assertions, the record also shows that the district court c a r e fu lly weighed several of the § 3553(a) factors, heard and responded to c o u n s e l's arguments, and gave detailed and substantial justification for its c o n c lu s io n that the range of 30 to 37 months in prison was insufficient to satisfy t h e objectives of § 3553, especially the goals of protecting the public and p r o v id in g the defendant with needed treatment. In sum, the district court gave d e t a ile d reasons for its choice of sentence. Bernard has shown no significant p r o c e d u r a l error in connection with his sentence. See United States v. DelgadoM a r tin e z , 564 F.3d 750, 751-53 (5th Cir. 2009). H e likewise has failed to establish that his sentence is substantively u n r e a s o n a b le . The district court made the required individualized assessment o f Bernard's circumstances based on the facts presented, started with the a p p lic a b le guidelines range, and heard counsel's arguments. See Gall, 552 U.S. 2

Case: 09-31181

Document: 00511208864 Page: 3 No. 09-31181

Date Filed: 08/19/2010

a t 49. Although the deviation was not insubstantial, this does no suffice to show t h a t it was unreasonable. Cf. United States v. Brantley, 537 F.3d 347, 348-50 (5 t h Cir. 2008); United States v. Jones, 444 F.3d 430, 433, 441-42 (2006). The judgment of the district court is AFFIRMED.

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