United States v. Payton , 325 F. App'x 385 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 18, 2009
No. 08-30773
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TY PAYTON
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CR-179-1
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Ty Payton appeals his 210-month sentence following his guilty plea
conviction for conspiracy to use and carry firearms during crimes of violence and
two counts of carjacking. He argues that his non-guidelines sentence is
unreasonable because the district court failed to provide an adequate
explanation for the variance, the district court failed to address his argument
that his mental illness represented a mitigating factor, and the variance was
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-30773
greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a).
To the extent that Payton argues that the district court failed to provide
an adequate explanation for the variance, that issue is reviewed for plain error
only. See United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied,
129 S. Ct. 962 (2009). The district court specifically cited to various § 3553(a)
factors as the bases for the upward variance and then recited the factual basis
for Payton’s guilty plea, which detailed the egregious series of events underlying
Payton’s instant offenses. Our review of Payton’s sentencing indicates that
Payton has failed to show plain error as to this issue. See United States v.
Bonilla, 524 F.3d 647, 657-59 (5th Cir. 2008), cert. denied, 129 S. Ct. 904 (2009).
Despite the Government’s argument to the contrary, Payton preserved his
mental illness claim by raising it in his sentencing memorandum. See United
States v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996). Moreover, he referenced
his mental health issues at sentencing. Our review of the record shows that the
district court read Payton’s sentencing memorandum, listened to his arguments,
and imposed the non-guidelines sentence after consideration of Payton’s
arguments, including his mental illness claim. Accordingly, Payton has failed
to show that the district court committed a procedural error in this regard. See
Rita v. United States, 127 S. Ct. 2456, 2468-69 (2007).
The extent of the variance at issue in this case is consistent with other
sentences that this court has affirmed. See, e.g., United States v. Brantley, 537
F.3d 347, 348-50 (5th Cir. 2008); United States v. Herrera-Garduno, 519 F.3d
526, 530-32 (5th Cir. 2008); United States v. Smith, 440 F.3d 704, 708-10 (5th
Cir. 2006). Payton has not shown that his sentence is procedurally or
substantively unreasonable. See Gall v. United States, 128 S. Ct. 586, 597
(2007).
The district court’s judgment is AFFIRMED.
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