     Case: 09-30915 Document: 00511331409 Page: 1 Date Filed: 12/23/2010




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

                                                 FILED
                                                                         December 23, 2010
                                     No. 09-30915
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CALVIN BETHLEY,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                              USDC No. 3:08-CR-182-1


Before GARWOOD, PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
       Calvin Bethley appeals the sentence he received in September 2009
following his guilty-plea conviction for escape, in violation of 18 U.S.C. § 751(a).
Specifically, he challenges the district court’s decision to depart upwardly to 60
months, pursuant to U.S.S.G. § 4A1.3.
       Bethley did not specifically object to the district court’s methodology in
calculating his sentence, and review is therefore for plain error only. See United
States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007). To demonstrate plain 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30915

an appellant must show a forfeited error that is clear or obvious and that affects
his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
If the appellant makes such a showing, this court has the discretion to correct
the error but will do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.; see also United States v. Ellis, 564 F.3d
370, 377-79 (5th Cir.) (explaining that, on plain error review, the legal error
must be obvious and not subject to reasonable debate and that “[n]ot every error
that increases a sentence need be corrected by a call upon plain error doctrine”),
cert. denied, 130 S. Ct. 371 (2009). Even assuming, arguendo only, that the
district court’s use of § 4A1.3 to depart upwardly both as to his criminal history
category (to a score of VI) and also as to his offense level amounted to error, we
nevertheless conclude that such does not constitute a clear or obvious error, and
that failure to afford appellate relief in respect to such action by the district
court does not seriously affect the fairness, integrity or public reputation of
judicial proceedings.
      Bethley contends that the extent of the upward departure in his case was
unsupportably extreme, urging that a sentence of 60 months, the statutory
maximum and more than 400% of the high end of the original guidelines range,
was unreasonable. He argues that a severe sentence was unwarranted because
he committed the least egregious form of escape, failure to report to a halfway
house.
      The extent of a departure is reviewed for an abuse of discretion. See
United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). Bethley has
not demonstrated an abuse of discretion on the district court’s part. This court
has upheld upward departures of the same extent or greater magnitudes. See,
e.g., United States v. Jones, 444 F.3d 430, 433, 442 (5th Cir. 2006); United States
v. Daughenbaugh, 49 F.3d 171, 174 (5th Cir. 1995). Here, the district court
indicated that a 60-month sentence was sufficient to account for the 18 U.S.C.



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                                  No. 09-30915

§ 3553(a) factors and the reasons underlying its decision to depart, and the court
provided individualized, case-specific reasons for imposing the sentence.
      The district court’s judgment is AFFIRMED.




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