United States v. Londo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 5, 2009
No. 08-30668
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CINDY MARIE LONDO
Defendant-Appellant
consolidated with
No. 08-30669
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MONICA RENE BRUMFIELD
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-60015-1
No. 08-30668 c/w
No. 08-30669
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Cindy Marie Londo and Monica Rene Brumfield, whose cases have been
consolidated on appeal, were involved in a scheme to defraud the Social Security
Administration. Londo pleaded guilty to one count of conspiracy to commit
social-security fraud, in violation of 18 U.S.C. § 371; Brumfield, to one count of
making a false statement to a government agency, in violation of 18 U.S.C. §
1001.
The advisory guideline range of imprisonment for both Londo and
Brumfield was 15 to 21 months. Londo contended at sentencing that her
criminal-history score over-represented her past crimes; Brumfield, that the
court should consider the difficult circumstances of her life when determining
her sentence. The district court imposed sentences outside the advisory
guideline range, requiring Londo and Brumfield each to serve 60 months in
prison.
Londo and Brumfield contend their sentences are substantively
unreasonable because their respective criminal histories were adequately and
accurately represented in the presentence report. Because Londo and Brumfield
present different contentions on appeal than they presented in district court,
review is only for plain error. E.g., United States v. Green, 324 F.3d 375, 381
(5th Cir. 2003) (observing that, where a contention on appeal differs from that
raised in district court, our review is for plain error).
In selecting the sentences, the district court appropriately considered the
advisory sentencing guidelines and the sentencing factors set forth at 18 U.S.C.
§ 3553(a). United States v. Booker, 543 U.S. 220 (2005); United States v. Gall,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 08-30668 c/w
No. 08-30669
128 S. Ct. 586, 596-97 (2007). The court found the 60-month sentences
appropriate in the light of Londo’s and Brumfield’s personal and criminal
histories, their likelihood of recidivism, the need to promote respect for the law,
the need to provide a deterrent to future criminal behavior, and the need to
protect the public. See, e.g., United States v. Smith, 417 F.3d 483, 491-93 (5th
Cir. 2005) (post-Booker, affirming a departure from a range of 33 to 41 months
to a statutory maximum of 120 months on the basis that Smith was “a habitual
criminal who has not been deterred by probation or parole, supervision, brief jail
terms, or prison sentences”).
Finally, the 186% upward deviation in issue here, although substantial,
is less than, or approximately equal to, other guideline departures and
deviations affirmed in this circuit post-Booker and post-Gall. See, e.g., United
States v. Mejia-Huerta, 480 F.3d 713, 716-19, 723-24 (5th Cir. 2007) (affirming
upward deviations of 140%, 134%, 344%, and 122% from the advisory guideline
ranges), cert. denied, 128 S. Ct. 2954 (2008).
Accordingly, neither the district court’s variance from the advisory
guidelines range nor the extent of the variance constitutes plain error. See Gall,
128 S. Ct. at 596-97.
AFFIRMED.
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