     Case: 12-30382       Document: 00512171705         Page: 1     Date Filed: 03/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 12, 2013
                                     No. 12-30382
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DARKHAN UTIMISSOV,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:11-CR-220-4


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Darkhan Utimissov pleaded guilty to conspiracy to commit bank fraud
and, at a second sentencing hearing, received, inter alia, two years’
imprisonment, a higher term than his advisory Guidelines sentencing range of
zero to six months. Contesting that sentence, Utimissov contends: the district
court imposed an upward departure without notifying him of its intent to do so,
in violation of Federal Rule of Criminal Procedure 32(h); and that lack of notice
constitutes procedural error.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30382

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect,
for issues preserved in district court, 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).
      Because Utimissov failed to present his contentions regarding his sentence
in district court, review is only for plain error. E.g., United States v.
Dominguez-Alvarado, 695 F. 3d 324, 327 (5th Cir. 2012). For reversible plain
error, Utimissov must show a clear or obvious error that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). He fails to do so for
each issue raised.
      For Utimissov’s lack-of-notice contention, the court accounted for the
advisory Guidelines and the 18 U.S.C. § 3553(a) sentencing factors, emphasizing
the seriousness of Utimissov’s actions and his lack of criminal history. The court
also adopted the victim’s urging, at both sentencing hearings, that a severe
sentence was necessary for deterrence. Because the court accounted for the
Guidelines, but imposed an above-Guidelines sentence based on the § 3553(a)
factors, the sentence constitutes a variance rather than a departure. E.g., United
States v. Mejia-Huerta, 480 F.3d 713, 721 (5th Cir. 2007). Therefore, the court
was not required to give notice of its intent to impose an above-Guidelines
sentence. Irizarry v. United States, 553 U.S. 708, 713-16 (2008).
      For his concomitant procedural-error contention, and as discussed above,
Utimissov has not shown such error, Gall, 552 U.S. at 51; again, he was not
entitled to notice of an intent to impose an above-Guidelines sentence, Irizarry,



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                                No. 12-30382

553 U.S. at 713-16. Nor has Utimissov otherwise shown any error regarding
either the procedural or substantive reasonableness of his sentence.
      AFFIRMED.




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