USA v. Darrell Hestand

Filing

UNPUBLISHED OPINION FILED. [14-10499 Affirmed ] Judge: HRD , Judge: JLD , Judge: EBC. Mandate pull date is 01/14/2015 for Appellant Darrell Gene Hestand [14-10499]

Case: 14-10499

Document: 00512881774

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Date Filed: 12/24/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10499
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
December 24, 2014

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
DARRELL GENE HESTAND,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-206-2
Before DeMOSS, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM: *
Darrell Gene Hestand appeals the sentence imposed following his guilty
plea conviction for conspiracy to possess with intent to distribute a mixture or
substance containing methamphetamine. The district court, assuming that
the then-pending and now effective amendment to the drug guidelines was
applicable, determined that Hestand’s guidelines sentence range was 140-175

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 14-10499
months of imprisonment, and it sentenced Hestand above the guidelines range
to the statutory maximum sentence of 240 months of imprisonment.
Hestand argues that the sentence was unreasonable because it
represented a clear error of judgment in balancing the sentencing factors. He
maintains that the guidelines range was unreasonably high because the purity
of the methamphetamine increased his offense level by six even though the
purity of the methamphetamine did not correspond to increased potency or
culpability. He argues that the high purity of the methamphetamine was due
to Mexican methamphetamine producers switching to a P2P method of
production due to Mexican laws restricting access to ephedrine and
pseudoephedrine. He contends that the P2P method results in the production
of dl-methamphetamine that is higher in purity but lower in potency than the
d-methamphetamine

produced

using

the

pseudoephedrine/ephedrine

reduction method. While Hestand acknowledges that he has a significant
criminal history, he notes that most of his offenses were minor and that the
longest custodial sentence he had previously served was 170 days.

He

maintains that any increase in his sentence that could be appropriate given
his criminal history is outweighed by the unwarranted increase to his
guidelines range caused by the purity of the methamphetamine and that the
extent of the upward variance was unwarranted.
We review the “substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007). We consider “the totality of the circumstances, including the extent of
any variance from the Guidelines range” and “must give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent
of the variance.” Id. “A non-Guideline sentence unreasonably fails to reflect
the statutory sentencing factors where it (1) does not account for a factor that

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should have 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).
While it would have been permissible for the district court to base the
sentence on a disagreement with the Guidelines, such as the argument that
Hestand raises concerning methamphetamine purity, the district court was
not required to disagree with the Guidelines, and the district court’s rejection
of Hestand’s purity argument does not make the sentence unreasonable. See
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
Furthermore, Hestand’s purity argument is based upon the presumption that
the methamphetamine that he possessed was more pure and less potent
because it was dl-methamphetamine, not d-methamphetamine.

Hestand,

however, produced no evidence showing that the methamphetamine he
possessed was dl-methamphetamine.
The district court’s upward variance was based upon Hestand’s long
criminal history and the failure of short sentences to reform Hestand’s
behavior. The record shows that the district court’s concern about Hestand’s
criminal history was well founded as Hestand had 12 convictions in the 12
years preceding his arrest for the present offense, including convictions for
serious offenses such as possession of cocaine with intent to distribute, injury
to a child, burglary of a vehicle, two counts of forgery, and two counts of driving
while intoxicated. While Hestand maintains that his criminal history was not
sufficiently serious to warrant an upward variance because he had never
served a sentence longer than 170 days, the district court did not abuse its
discretion by making an upward variance based upon Hestand’s long criminal
history and the lenient sentences he had previously received. See United

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States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008); United States v. Lee, 358
F.3d 315, 328-29 (5th Cir. 2004). Furthermore, the amount of the variance, 65
months above the top of the assumed guidelines range, was not unreasonable.
See Brantley, 537 F.3d at 348, 350; United States v. Smith, 417 F.3d 483, 49293 (5th Cir. 2005).
AFFIRMED.

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