USA v. Jason Owen

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UNPUBLISHED OPINION FILED. [10-10075 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 12/10/2010 for Appellant Jason Owen [10-10075]

USA v. Jason OwenCase: 10-10075

Document: 00511299154 Page: 1 Date Filed: 11/19/2010

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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 . 10-10075 S u m m a r y Calendar November 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 A S O N OWEN, 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 U S D C No. 4:08-CR-116-1

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* J a s o n Owen appeals from the concurrent 87-month sentences imposed by t h e district court for his convictions of one count of manufacturing, and one c o u n t of distributing, counterfeit currency. He argues that the district court e r r e d by upwardly departing from the guidelines range of 21-27 months of im p r is o n m e n t. A lt h o u g h we ordinarily review sentences for reasonableness, Gall v. U n ite d States, 552 U.S. 38, 51 (2007), because Owen did not object to 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10075 Document: 00511299154 Page: 2 Date Filed: 11/19/2010 No. 10-10075 u n r e a s o n a b le n e s s of his sentence in the district court, review is for plain error o n ly . See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Given O w e n 's extensive criminal record, the district court did not err, plainly or o t h e r w is e , by upwardly departing based upon its finding that Owen's criminal h is t o r y category substantially under-represented the seriousness of his criminal h is t o r y or the likelihood that he would recidivate. See U.S.S.G. 4A1.3(a)(1); U n ite d States v. Simkanin, 420 F.3d 397, 418 & n. 24 (5th Cir. 2005) (affirming a n upward departure based upon the defendant's likelihood to recidivate). This c o u r t has previously upheld comparable, and even greater, departures than the o n e here at issue. See United States v. Smith, 417 F.3d 483, 492-93 (affirming u p w a r d departure from 41 months to 120 months of imprisonment); United S ta te s v. Rosogie, 21 F.3d 632, 633-34 (5th Cir. 1994) (affirming upward d e p a r t u r e from 30-37 month guidelines range to 150 months of imprisonment). We similarly conclude that the degree of departure was not unreasonable in this case. A F F IR M E D .

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