United States v. DeLaughter

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 26, 2008
No. 07-11202
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALAN VAN DELAUGHTER
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:07-CR-94-ALL
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Alan Van DeLaughter was convicted by a jury of one count of mailing
threats to damage or destroy property and one count of mailing threatening
communications and was sentenced to two consecutive terms of 120 months in
prison. On appeal, DeLaughter argues that the district court erred by imposing
a sentence which was above the recommended Federal Sentencing Guidelines
range of 100 to 125 months.
*
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should not be published and is not precedent except under the limited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. 07-11202
The sentence imposed by the district court is typically reviewed for
reasonableness under an abuse-of-discretion standard. Gall v. United States,
128 S. Ct. 586, 591 (2007). The Supreme Court rejected the notion that the
district court needs extraordinary circumstances to justify a deviation from the
Guidelines range. See id. at 595. A district court, in sentencing, should use the
Guidelines range as “the starting point and the initial benchmark” but should
then consider all of the sentencing factors set forth in 18 U.S.C. § 3553(a). Id.
at 596. If the court concludes that a sentence outside the Guidelines is
warranted, it “must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance.” Id.
at 597. “After settling on the appropriate sentence, [the sentencing court] must
adequately explain the chosen sentence to allow for meaningful appellate review
and to promote the perception of fair sentencing.” Id.
DeLaughter does not challenge the district court’s calculation of the
appropriate advisory Guidelines range or the factual recitation of his criminal
history. Although he challenges the district court’s conclusions, DeLaughter
does not assert that the district court did not specifically consider § 3553(a) in
imposing the departure. The record shows the district court considered these
factors, including DeLaughter’s history and characteristics, the need for
adequate deterrence, and the need to protect the public from future crimes by
DeLaughter. The district court relied on more than the mere number of offenses
that DeLaughter had committed and the other times he had been arrested. The
district court’s decision was based on the finding that DeLaughter’s history
contained repeated instances of threats against others and two additional
threats against federal district court judges, one of which pertained to the
current criminal conviction. Given the facts of this case and the district court’s
reasons for departing from the Guidelines range, DeLaughter has not shown
that the district court abused its discretion in imposing consecutive 120-month
sentences. See id.
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No. 07-11202
DeLaughter argues that the district court was not required to provide him
notice before imposing an above-guidelines sentence, but should have done so
anyway. This court has held that the district court may sua sponte impose a
non-guideline sentence without advance notice to the defendant. United States
v. Mejia-Huerta, 480 F.3d 713, 722-23 (5th Cir. 2007), cert. denied, 128 S. Ct.
2954 (2008). The Supreme Court recently held the same in United States v.
Irizarry, 128 S. Ct. 2198, 2202-04 (2008).
DeLaughter’s sentence is AFFIRMED.
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