USA v. Jerry Allen, Jr.

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UNPUBLISHED OPINION FILED. [10-10073 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 11/09/2010 for Appellant Jerry David Allen Jr. [10-10073]

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USA v. Jerry Allen, Jr. Doc. 0 Case: 10-10073 Document: 00511267088 Page: 1 Date Filed: 10/19/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-10073 S u m m a r y Calendar October 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 , versu s J E R R Y DAVID ALLEN, JR., 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 Northern District of Texas N o . 2:08-CR-40-1 B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* J e r r y Allen, Jr., appeals the 60-month sentence imposed following his jury c o n v ic t io n on one count of aiding and abetting the making of threats against 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 10-10073 Document: 00511267088 Page: 2 No. 10-10073 Date Filed: 10/19/2010 P r e s id e n t of the United States in violation of 18 U.S.C. 2 and 871 and one c o u n t of making threats against the President in violation of 871. Allen cont e n d s that the district court plainly erred when it increased his base offense level p u r s u a n t to U.S.S.G. 3A1.2(a) and (b). Because Allen did not object to the app lic a t io n of 3A1.2(a) and (b) in the district court, our review is limited to plain e r r o r . See United States v. Alvarado-Santilano, 434 F.3d 794, 795 (5th Cir. 2 0 0 5 ). S e c t io n 3A1.2 instructs the district court to apply the greatest offense level a d ju s tm e n t found in subsection (a), (b), or (c). The language of 3A1.2 is plain a n d unambiguous and does not appear to be subject to interpretation. Therefore, t h e district court committed error that was clear or obvious when it enhanced Alle n 's base offense level pursuant to 3A1.2(a) and (b). See United States v. Leon a r d , 157 F.3d 343, 345-46 (5th Cir. 1998) (finding plain error, even in the abs e n c e of controlling authority, where the pertinent guidelines were clear and una m b ig u o u s ) . H a d the district court properly applied 3A1.2, Allen's guideline imp r is o n m e n t range would have been 27-33 months instead of 37-46 months. The d is t r ic t court, however, did not base its sentencing decision on the guideline r a n g e . Instead, it imposed the statutory maximum term of imprisonment, a sent e n c e above even the top end of the erroneous range, while commenting on the n e e d to punish and deter Allen's continued criminal activity. Allen cites to no e v id e n c e in the record indicating that the court relied on the erroneous range or w o u ld not have imposed the same sentence absent the error. Further, there is s u b s t a n t ia l evidence supporting the upward variance. Because Allen has not s h o w n that the court could not impose the same sentence on remand or that t h e r e is a reasonable probability that, but for the error, the sentence would have b e e n lower, Allen cannot show plain error. See United States v. Davis, 602 F.3d 6 4 3 , 648-52 (5th Cir. 2010). A lle n also contends that the sentence is substantively unreasonable be2 Case: 10-10073 Document: 00511267088 Page: 3 No. 10-10073 Date Filed: 10/19/2010 c a u s e it is twice the correct guideline range and is based on a lengthy and extens iv e mental health condition suffered as a result of his being repeatedly molested a s a child. Because Allen did not object to the reasonableness of his sentence aft e r it was imposed, review is for plain error. See United States v. Peltier, 505 F .3 d 389, 391-92 (5th Cir. 2007). C o n t r a r y to his contention, Allen's disturbing personal history and mental h e a lt h problems were not the basis for the decision to vary upwardly to the statu to r y maximum. The court's explanation at sentencing and its statement of reas o n s reflect that it based its decision on the 3553(a) factors, including the natu re and circumstances of the offense of conviction, Allen's history and characteris t ic s , and the need to provide just punishment and to deter Allen from further c r im in a l conduct. Given the significant deference that is owed to a court's consideration of t h e 3553(a) factors and the court's reasons for the sentence, Allen has not s h o w n that the sentence was substantively unreasonable. See United States v. B r a n tle y , 537 F.3d 347, 349 (5th Cir. 2008). This court has affirmed, as reasona b le , variances similar to and greater than the increase in Allen's sentence. See id . at 348-50; United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir. 2 0 0 8 ). Accordingly, the judgment of sentence is AFFIRMED. 3

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