USA v. Michael Corsten
UNPUBLISHED OPINION FILED. [16-41635 Affirmed] Judge: CDK, Judge: JWE, Judge: SAH. Mandate issue date is 11/30/2017 for Appellant Michael James Corsten [16-41635]
Date Filed: 11/08/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
November 8, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
MICHAEL JAMES CORSTEN,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-1316-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Michael James Corsten appeals the sentence imposed on his conviction
for coercion and enticement of a minor. The district court sentenced him to
180 months of imprisonment and 20 years of supervised release. The sentence
represented an upward departure under U.S.S.G. § 4A1.3 from criminal
history category II to category VI and an upward variance based on the
sentencing factors under 18 U.S.C. § 3553(a).
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 11/08/2017
Corsten challenges the district court’s upward departure under § 4A1.3,
arguing that the district court failed to give reasons why a departure to
criminal history category VI was appropriate and failed to follow the requisite
procedure under § 4A1.3 for considering each intermediate criminal history
category between categories II and VI.
Although Corsten objected to his
sentence in the district court, he did not object on the specific grounds he raises
here. Accordingly, plain error review applies to his arguments. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
The reasons for the district court’s upward departure to criminal history
category VI are abundantly clear from the record based on the court’s
explanation for the departure in the statement of reasons, adoption of the PSR,
consideration of the parties’ arguments at sentencing, and statements at
sentencing. See United States v. Zuniga-Peralta, 442 F.3d 345, 347-48 & n.2
(5th Cir. 2006). In addition, the district court was not required to mechanically
discuss each criminal history category it rejected en route to the selected
category. See United States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en
banc). The district court’s reasons for rejecting the intermediate categories
were implicit in its explanation for its departure to criminal history category
VI. See United States v. Ashburn, 38 F.3d 803, 809-10 (5th Cir. 1994) (en banc).
The size of the departure here was not so drastic as to require an “explanation
in careful detail” of the reasons why lesser adjustments to Corsten’s criminal
history score were inadequate. See id. (internal quotation marks and citation
omitted). Corsten has not demonstrated clear or obvious error with respect to
the district court’s upward departure under § 4A1.3.
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