United States v. Cox

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 18, 2008
No. 07-30956
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LARRY ANDREW COX
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:06-CR-20130-1
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Larry Andrew Cox appeals the sentence imposed following his guilty plea
conviction of sexual abuse of a minor who was over twelve years of age but less
than 16 years of age, in violation of 18 U.S.C. § 2243(a)(1). Cox argues that the
district court abused its discretion by imposing an unreasonable sentence of 76
months of imprisonment, more than three times the upper end of the guidelines
range of 18 to 24 months of imprisonment.
*
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should not be published and is not precedent except under the limited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. 07-30956
The Government argues that Cox did not present this issue in the district
court and therefore plain error review governs this appeal. We need not
determine whether Cox forfeited the issue because the judgment withstands
scrutiny even under the abuse-of-discretion standard. See United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
As Cox has not argued that procedural error exists, see id., this court
considers the substantive reasonableness of the sentence under the abuse-of-
discretion standard. See id.; United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008). The district court properly used the unchallenged guidelines range
as the starting point and initial benchmark. See United States v. Gall, 128 S. Ct.
586, 596 (2007). The district court then properly considered the sentencing
factors of § 3553(a), explaining in detail why the guidelines range was
insufficient. See id. While the district court indicated that the sentence could
be either an upward departure or a variance, because the following analysis
shows that Cox’s sentence is reasonable under the totality of the relevant
statutory factors, the specific characterization is irrelevant. See Brantley, 537
F.3d at 349.
After conducting an extensive review of the presentence report’s
unchallenged facts, the district court determined that the sentencing factors of
§ 3553(a) required a sentence outside of the guidelines range. The district court
cited the nature and circumstances of the offense and the history and
characteristics of the defendant, the need for the sentence to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense, the need for the sentence to afford adequate
deterrence to criminal conduct, and the need for the sentence to protect the
public from further crimes of the defendant. See § 3553(a)(1), (a)(2)(A)-(C). The
district court made specific findings regarding why the guidelines range was
inadequate in light of these § 3553(a) factors, including that the 13-year-old
victim was vulnerable, the crime occurred on a military base, and Cox had
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No. 07-30956
exposed himself to an 18-year-old on a military base. The district court
determined that Cox’s history revealed a pattern of predatory conduct and a
sentence within the guidelines range was inadequate to serve as a deterrent and
protect others from Cox.
In light of the district court’s findings, Cox’s arguments are not persuasive.
Exceptional circumstances are not needed to justify a departure. Gall, 128 S. Ct.
at 596; United States v. Williams, 517 F.3d 801, 811 (5th Cir. 2008). The district
court explained in detail why the guidelines sentence was insufficient. Finally,
Cox’s sentence of 76 months of imprisonment is less than half the statutorily
authorized sentence of 15 years of imprisonment, and the extent of the variance
is consistent with other sentences that this court has affirmed. See § 2243(a);
Brantley, 537 F.3d at 348-50; United States v. Smith, 440 F.3d 704, 708 n.5,
709-10 (5th Cir. 2006); United States v. Jones, 444 F.3d 430, 433 (5th Cir. 2006).
In light of the record and the deference that this court affords to the
district court’s findings, the district court did not abuse its discretion by
concluding that a 76-month sentence was reasonably necessary to achieve the
objectives of § 3553(a). See Williams, 517 F.3d at 812-13.
The judgment of the district court is AFFIRMED.
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