United States v. Brazzel

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 30, 2007
Charles R. Fulbruge III
Clerk
No. 06-31034
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDALL M. BRAZZEL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:06-CR-50023
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Randall M. Brazzel appeals his sentence following his guilty
plea to bank fraud, in violation of 18 U.S.C. § 1344. The
district court imposed a non-guidelines sentence of 36 months in
prison, which was nine-months above the upper end of the advisory
guidelines range of 21 to 27 months calculated in the presentence
report.
Brazzel argues first that the district court erred by sua
sponte imposing a sentencing above the guidelines range without
first providing notice of its intent to do so. In support of his
*
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this opinion should not be published and is not precedent except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. 06-31034
-2-
argument he relies on the reasoning of Burns v. United States,
501 U.S. 129 (1991), and FED. R. CRIM. P. 32(h). His argument is
foreclosed by United States v. Mejia-Huerta, 480 F.3d 713, 720-23
(5th Cir. 2007), petition for cert. filed (Apr. 18, 2007) (No.
06- 1381).
Brazzel also argues that his 36-month sentence was
unreasonable. The district court’s sentencing colloquy shows
that the court considered Brazzel’s particular characteristics
and circumstances and the need for the sentence to reflect the
seriousness of the offense, to promote respect for the law, and
to provide just punishment and adequate deterrence for further
offenses. The court’s comments and written statement of reasons
show that the court was aware of the correctly calculated
guidelines range and the need to avoid unwarranted sentencing
disparities. Brazzel fails to show that the district court did
not account for a factor that should have received great weight,
gave significant weight to an irrelevant factor, or committed a
clear error of judgment in balancing the sentencing factors. See
United States v. Smith, 440 F.3d 704, 707-09 (5th Cir. 2006).
The district court’s judgment is AFFIRMED.