United States v. Furet , 281 F. App'x 312 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 5, 2008
No. 07-20633
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DWAYNE ALBERTO FURET
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-268-ALL
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Dwayne Alberto Furet appeals the 120-month sentence imposed following
his guilty-plea conviction for being a felon in possession of a firearm. Furet
argues that the district court erred in upwardly departing under U.S.S.G.
§ 4A1.3, p.s., based on the underrepresentation of his criminal history. He also
challenges the extent of the upward departure.
Because Furet challenged the decision to upwardly depart in the district
court, we review the decision of the district court to depart for abuse of
*
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should not be published and is not precedent except under the limited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.
No. 07-20633
discretion. See Gall v. United States, 128 S. Ct. 586, 591 (2007); United States
v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005). We also review the extent of
departure for an abuse of discretion. See United States v. Allison, 447 F.3d 402,
407 (5th Cir. 2006). The Government urges that Furet did not object to the
extent of the departure at sentencing and that we should review that issue for
plain error. Furet argues for abuse of discretion review, maintaining that he
objected at sentencing.1 We need not reach the issue, as Furet’s claim fails
under either standard. We ultimately determine whether the sentence is
reasonable under 18 U.S.C. § 3553(a). See United States v. Zuniga-Peralta, 442
F.3d 345, 347 (5th Cir. 2006).
The district court’s decision to upwardly depart was based on the factors
in § 3553(a), including Furet’s history and characteristics, the need for adequate
deterrence, and the need to protect the public from future crimes by Furet. The
district court relied, in part, on Furet’s lengthy criminal history, his tendency
toward violent crimes, and the likelihood of prior lenient sentences. The district
court also noted that several of Furet’s prior convictions had not been included
in his criminal history score pursuant to U.S.S.G. § 4A1.1(c). Because the
upward departure advanced the objectives in § 3553(a) and is justified by the
facts of the case, the district court did not abuse its discretion in upwardly
departing from the advisory guideline range. See Zuniga-Peralta, 442 F.3d at
347; United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004).
In challenging the extent of the district court’s departure, Furet asserts
that the district court committed reversible error by failing to specifically
address each intervening offense level when determining that a departure to
criminal history category VI and offense level 24 was warranted. The district
court determined that Furet’s likelihood of recidivism and the resultant risk to
1
His attorney requested at sentencing that the court “give him the low
[e]nd of the guideline range” and that the court “not upwardly depart.”
2
No. 07-20633
the community warranted a sentence at the statutory maximum. This reasoning
implicitly established the district court’s rationale for rejecting the intervening
levels, which satisfied the court’s burden. See United States v. Lambert, 984
F.2d 658, 663-64 (5th Cir. 1993) (en banc) (where the “district court set out
specifically the factors that the guidelines did not take into account,” “[a]lthough
the court’s decision could have been more explicitly tied to the incremental
character of criminal history departures,” the factors set out by the court were
sufficient); see also id. at 664 (“Ordinarily the district court’s reasons for
rejecting intermediate categories will clearly be implicit, if not explicit, in the
court’s explanation for its departure from the category calculated under the
guidelines and its explanation for the category it has chosen as appropriate.”)
Given the facts of this case and the district court’s reasons for departing, Furet
has not shown that the court abused its discretion in determining the extent of
departure. See Lee, 358 F.3d at 328-29. The judgment of the district court is
AFFIRMED.
3