United States v. Gary Sides

Case: 10-10313 Document: 00511433348 Page: 1 Date Filed: 04/04/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 4, 2011
No. 10-10313
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
GARY WAYNE SIDES,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CR-134-1
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Gary Wayne Sides appeals his 36-month sentence, imposed following his
guilty-plea conviction for uttering counterfeit obligations of the United States,
in violation of 18 U.S.C. § 472. He contends: the district court erred by
departing upwardly from his advisory Sentencing Guidelines sentencing range
of 18 to 24 months; and, his sentence is unreasonable.
Although, post-Booker, the Guidelines are advisory only, and a sentence
is reviewed for reasonableness under an abuse-of-discretion standard, the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10313
district court must still properly calculate the sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 50-51
(2007). In that respect, its application of the Guidelines is reviewed de novo; its
factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005). Our court first examines whether the district court committed
any significant procedural error. Gall, 552 U.S. at 51. (Sides does not contend
his sentence is procedurally unreasonable.) We next “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard”.
Id.A district court’s decision to depart from the advisory sentencing range,
and the extent of that departure, is reviewed for abuse of discretion. E.g., United
States v. Newsom, 508 F.3d 731, 733-34 (5th Cir. 2007) (citation omitted). The
district court concluded that Sides’ criminal-history category substantially
under-represented the seriousness of his criminal history, the likelihood that he
would recidivate, and the need to protect the public. See U.S.S.G. § 4A1.3(a)(1)
(“If reliable information indicates . . . defendants’s criminal history category
substantially under-represents the seriousness of [his] criminal history or the
likelihood that [he] will commit other crimes, an upward departure may be
warranted.”); United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006)
(upward departure not abuse of discretion if district court’s reasons for departing
advance 18 U.S.C. § 3553(a)(2) objectives and are justified by facts of the case);
United States v. Simkanin, 420 F.3d 397, 418 & n. 24 (5th Cir. 2005) (affirming
upward departure based upon likelihood of recidivism). Two convictions and six
arrests not resulting in convictions were unaccounted for by Sides’ criminal-
history category. See U.S.S.G. § 4A1.3(a)(2)(A) & (E) (information that may be
considered in forming basis for an upward departure includes “[p]rior sentence(s)
not used in computing the criminal history category” and “[p]rior similar adult
criminal conduct not resulting in a criminal conviction”). Given Sides’ extensive
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No. 10-10313
criminal record, which includes other offenses designed to deprive rightful
owners of their property, as well as violent assaults, the court did not abuse its
discretion by departing upwardly.
In regard to the substantive reasonableness of the sentence, the district
court cited fact-specific reasons for imposing a non-Guidelines sentence, and its
reasons for imposing an upward departure adequately reflected the 18 U.S.C.
§ 3553(a) sentencing factors. See United States v. Tzep-Mejia, 461 F.3d 522, 527
(5th Cir. 2006). Along that line, our court has previously upheld comparable,
and even greater, departures than Sides’. See Zuniga-Peralta, 442 F.3d at 346-
48 (upholding 27-month upward departure based on defendant’s extensive
criminal history); United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004)
(upholding 24-month upward departure in the light of defendant’s 21 criminal-
history points, prior lenient sentences received, and likelihood of recidivism);
United States v. McKenzie, 991 F.2d 203, 205 n.7, 206 n.8 (5th Cir. 1993) (ruling
27-month departure, roughly twice Guidelines maximum, was reasonable in the
light of defendant’s serious criminal history).
AFFIRMED.
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