USA v. William McGuire

Filing

UNPUBLISHED OPINION FILED. [11-30275 Affirmed ] Judge: EGJ , Judge: JES , Judge: JEG Mandate pull date is 01/25/2012 for Appellant William James McGuire [11-30275]

Case: 11-30275

Document: 00511714419

Page: 1

Date Filed: 01/04/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-30275
Summary Calendar

January 4, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WILLIAM JAMES MCGUIRE,
Defendant-Appellant

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:10-CR-285-1

Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
William James McGuire appeals the 120-month sentence of imprisonment
imposed following his guilty plea conviction of bank fraud.

His sentence

represents an upward variance from the guideline range of 51 to 63 months.
We review a district court’s sentencing decision for abuse of discretion.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008). We first determine whether the district court
committed any significant procedural error, “such as failing to calculate (or
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Case: 11-30275

Document: 00511714419

Page: 2

Date Filed: 01/04/2012

No. 11-30275
improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51. If the district court’s sentencing
decision is procedurally sound, we then review the substantive reasonableness
of the sentence under an abuse of discretion standard. Id.
Procedural reasonableness
McGuire asserts that the district court failed to adequately explain its
sentence. He contends that the district court did not sufficiently address on the
record concerns about his health and that it failed to explain why the guideline
range was not appropriate for a 64-year-old first-time offender with medical
problems. He argues that the district court’s explanation does not allow for
meaningful appellate review.
Because McGuire did not object to the adequacy of the district court’s
explanation, our review is for plain error. See United States v. Whitelaw, 580
F.3d 256, 259 (5th Cir. 2009). Although the district court did not specifically
allude to McGuire’s first-time offender status or his medical problems, it
provided an extensive explanation for its selection of sentence. The district court
indicated that it had considered McGuire’s history and characteristics, his
criminal history, the offense, and the § 3553(a) factors. The record of the
sentencing proceedings is sufficient for appellate review, and there is no
indication that the district court considered an improper factor or that it would
have imposed a lesser sentence on remand. McGuire has failed to shown an
entitlement to relief under the plain error standard. See Whitelaw, 580 F.3d at
264-65.
Substantive reasonableness
“A non-Guideline sentence unreasonably fails to reflect the [§ 3553(a)]
sentencing factors where it (1) does not account for a factor that should have
2

Case: 11-30275

Document: 00511714419

Page: 3

Date Filed: 01/04/2012

No. 11-30275
received significant weight, (2) gives significant weight to an irrelevant or
improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
Arguing pursuant to Smith, McGuire asserts that the sentence does not account
for his medical condition and his lack of criminal history. He contends that the
district court improperly varied upwardly based on his abuse of a position of
trust and the vulnerability of his victims; he notes that enhancements for these
factors had been applied, thus increasing his guideline range. McGuire argues
that the district court committed a clear error of judgment in balancing the
sentencing factors.
The district court determined that McGuire, as the owner and operator of
a funeral home in a small community, a business previously run by his father,
had occupied a “unique position of trust.” The district court also determined that
McGuire’s conduct extensively affected the victims, who were mostly elderly, and
that the family members of deceased victims had also been victims of the offense
because they had borne funeral expenses as a result of McGuire’s offense. These
determinations are supported by the record.
“Under the advisory Sentencing Guidelines, the district court must
consider various factors in crafting an individualized sentence and is free to give
more or less weight to factors already accounted for in that advisory range.”
United States v. Douglas, 569 F.3d 523, 527-28 (5th Cir. 2009). The district
court’s determination that an upward variance was warranted based on factors
already considered in establishing the guideline range was not an abuse of
discretion. See id. We must accord “due deference” to the district court’s
determination that the sentencing factors taken as a whole justify the extent of
the variance. Gall, 552 U.S. at 51.
AFFIRMED.

3