USA v. Curtis Titu

Filing

UNPUBLISHED OPINION FILED. [10-50293 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 01/04/2011 for Appellant Curtis Lamont Titus [10-50293]

USA v. Curtis Titu

Case: 10-50293 Document: 00511321206 Page: 1 Date Filed: 12/14/2010

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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 . 10-50293 S u m m a r y Calendar December 14, 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 U R T I S LAMONT TITUS, 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 Texas U S D C No. 1:09-CR-300-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* C u r t is Lamont Titus pleaded guilty without the benefit of a plea a g r e e m e n t to one count of possessing with intent to distribute crack and one c o u n t of conspiracy. The probation officer calculated an adjusted offense level o f 25, which, combined with Titus's criminal history category of VI, resulted in a guidelines imprisonment range of 110 to 137 months. At sentencing, the d is t r ic t court upwardly departed by four levels based on Titus's extensive c r im in a l history, U.S.S.G. § 4A1.3(a)(1), bringing Titus's guidelines sentencing
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50293 Document: 00511321206 Page: 2 Date Filed: 12/14/2010 No. 10-50293 r a n g e to 151 to 188 months. The court sentenced Titus to two concurrent 1 8 0 -m o n t h prison terms. Titus challenges the upward departure, arguing that it resulted in a s e n te n c e that was greater than necessary to achieve the purposes of sentencing a s outlined in 18 U.S.C. § 3553(a). He contends that because the Guidelines t r e a t crack offenses, like his, more harshly than offenses involving powder c o c a in e , a high-end guidelines sentence would have been sufficient to take into a c c o u n t his criminal history. We review for reasonableness a district court's d e c is io n to upwardly depart from the guideline range. United States v.

Z u n ig a -P e r a lta , 442 F.3d 345, 347 (5th Cir. 2006). Because Titus did not raise t h is issue at sentencing, our review is for plain error. See United States v. M o n d r a g o n -S a n tia g o , 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2 0 0 9 ). Contrary to Titus's suggestion, nothing requires a district court to c on sid er the disparity between sentences for offenses involving crack and powder c o c a in e , see United States v. Duarte, 569 F.3d 528, 530 (5th Cir.), cert. denied, 1 3 0 S. Ct. 378 (2009), much less does failure to do so amount to plain error. See M o n d r a g o n -S a n tia g o , 564 F.3d at 367-68. Moreover, the record supports the district court's finding that Titus's c r im i n a l history score underrepresented his past conduct. Titus's criminal

h is t o r y score was three points higher than the score required to put him in c a t e g o r y VI--the highest criminal history category. See United States v. Lee, 358 F .3 d 315, 328 (5th Cir. 2004). Over a dozen convictions were omitted from that s c o r e , including one for assaulting a police officer and three other assault c o n v ic t io n s . Accordingly, the court did not err in departing upward based on T it u s 's extensive criminal history and its finding that Titus was not likely to stop h is criminal conduct. See Zuniga-Peralta, 442 F.3d at 347. The judgment of the district court is AFFIRMED.

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