United States v. Dibbles

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 14, 2007
Charles R. Fulbruge III
Clerk
No. 06-51234
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHANTE DIBBLES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CR-62-ALL
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Chante Dibbles appeals the sentence imposed by the district
court following his guilty-plea conviction for being a felon in
possession of ammunition. Although his advisory guidelines
imprisonment range was 77 to 96 months, the district court
sentenced Dibbles to the statutory maximum sentence of 120 months
of imprisonment. The court found that Dibbles’s criminal record
warranted an upward departure under U.S.S.G. § 4A1.3. The court
further found that a variance under 18 U.S.C. § 3553(a) was
justified because of the nature and circumstances of Dibbles’s
*
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this opinion should not be published and is not precedent except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. 06-51234
-2-
conduct and the history and characteristics of his past. The
sentence was thus based on both an upward departure from the
guidelines range and a non-guidelines sentence, or “variance”
from the guidelines. See United States v. Mejia-Huerta, 480 F.3d
713, 721 (5th Cir. 2007), petition for cert. filed, 75 U.S.L.W.
3585 (U.S. Apr. 18, 2007) (No. 06-1381); United States v. Smith,
440 F.3d 704, 706-07 (5th Cir. 2006). A non-guidelines sentence
is ultimately reviewed for unreasonableness.** Smith, 440 F.3d
at 706. An upward departure is reviewed for an abuse of
discretion. Id. at 707.
“Both a district court’s post-Booker sentencing discretion
and the reasonableness inquiry on appeal must be guided by the
sentencing considerations set forth in [] § 3553(a).” Id. at
706. These factors include the nature and circumstances of the
offense, the defendant’s history and characteristics, and the
need for the sentence to reflect the seriousness of the offense.
§ 3553(a)(1), (2). A district court must also consider these
factors when imposing a sentence that represents an upward
departure from the advisory guidelines range. United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert. denied,
126 S. Ct. 2954 (2006).
**
Dibbles did not raise this challenge to his sentence in
the district court. His argument may thus be subject to plain-
error review rather than reasonableness review. See United
States v. Gonzalez-Zuniga, F.3d , No. 06-41030, 2007 WL
1289984 at *1 (5th Cir. May 2, 2007). This court need not decide
which standard applies, however, because Dibbles’s sentence was
proper under either standard. Id.No. 06-51234
-3-
Dibbles argues that his sentence was unreasonable because
the district court failed to consider his mitigating
circumstances in imposing the sentence. He argues that
consideration of his mitigating circumstances was mandated under
18 U.S.C. § 3553(a), and that the court abused its discretion by
failing to account for them in either its oral or written reasons
for imposing the sentence.
A district court must more thoroughly articulate its reasons
when it imposes a non-guidelines sentence than when it imposes a
sentence under the guidelines. Smith, 440 F.3d at 707. However,
a “checklist recitation” of the § 3553(a) factors is not
necessary for a sentence to be reasonable. Id. Dibbles has not
shown that the district court failed to consider a required
factor under § 3553(a). The district court’s sentence thus was
proper under either plain-error or reasonableness review.
AFFIRMED.