     Case: 09-30810     Document: 00511144078          Page: 1    Date Filed: 06/16/2010




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

                                                 FILED
                                                                            June 16, 2010
                                     No. 09-30810
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff – Appellee

v.

JEREMY PAUL METREJEAN,

                                                   Defendant – Appellant


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                              USDC No. 3:08-CR-67-2


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jeremy Paul Metrejean appeals the sentence imposed upon his conviction
for attempting to possess with the intent to distribute cocaine. See 21 U.S.C.
§§ 841, 846. He argues that the facts do not support the district court’s upward
variance from a guideline range of 37 to 46 months to a sentence of 132 months
of imprisonment. We AFFIRM on that issue, but REMAND in order that a
clerical error in the judgment can be corrected.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-30810    Document: 00511144078 Page: 2         Date Filed: 06/16/2010
                                 No. 09-30810



      A. Procedural Reasonableness
      The sentencing transcript refutes Metrejean’s allegation that the district
court committed procedural error by failing to articulate adequately the reasons
for the upward variance. In addition, the finding of a long history of crimes of
violence was “plausible in light of the record as a whole” and thus was not clearly
erroneous. United States v. Brown, 470 F.3d 1091, 1094 (5th Cir. 2006).
      Metrejean’s suggestion that the district court departed upward pursuant
to Section 4A1.3 is inaccurate. The district court imposed an upward variance
pursuant to Section 3553(a). Metrejean’s arguments relating to Section 4A1.3
are without merit. See United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th
Cir. 2007).
      Metrejean’s assertion that the district court failed to provide a statement
of reasons for the upward variance is inaccurate. Any error that may have
resulted from Metrejean’s failure to obtain a copy did not affect his substantial
rights. United States v. Peltier, 505 F.3d 389, 394 (5th Cir. 2007).
      There was no clear or obvious procedural error in sentencing Metrejean.
See United States v. Key, 599 F.3d 469, 474 (5th Cir. 2010).
      B. Substantive Reasonableness
      The district court based its sentencing decision on permissible factors that
advanced the objectives set forth in Section 3553(a).        Metrejean had been
arrested sixteen times since the age of eighteen. At least three of his offenses
involved violent behavior. See, e.g., Peltier, 505 F.3d at 392-93 & n.9. The
assertion that these prior crimes were not serious offenses is inaccurate: he
escaped from confinement; his fist fight with another man resulted in a
conviction for second degree battery; he had sexual intercourse with a thirteen-
year-old girl; and he was arrested for trying to run a man off the road with his
car, for stealing a car, for battery on a police officer, for simple criminal damage
to property, and for possession of hydrocodone. The cocaine conspiracy in which

                                         2
   Case: 09-30810    Document: 00511144078 Page: 3        Date Filed: 06/16/2010
                                 No. 09-30810

Metrejean was involved was responsible for the transportation and distribution
of approximately 700 kilograms of cocaine over two years. Neither defense
counsel nor Metrejean objected to the factual findings in the PSR. The district
court was therefore entitled to rely on the facts in the PSR. See United States
v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).
      It is also alleged that the district court failed to consider Metrejean’s
family background. To the contrary, the district court addressed the mental
health issues caused by Metrejean’s background by ordering while on supervised
release that he “participate in a mental health assessment and/or treatment
program.”
      Metrejean has not shown that the district court abused its discretion or
that his sentence was substantively unreasonable. See Gall v. United States,
552 U.S. 38, 50-53 (2007).
      C. Clerical Error in Judgment
      The judgment states that Metrejean pled guilty to count one of the
indictment and that count two was dismissed on the motion of the Government.
These statements are inaccurate. Metrejean pled guilty to the attempt charge
in the bill of information. The case is therefore remanded for the limited purpose
of correcting the clerical error in the judgment pursuant to F ED. R. C RIM. P. 36.
See United States v. Johnson, 588 F.2d 961, 964 (5th Cir. 1979).
      AFFIRMED IN PART; REMANDED IN PART.




                                         3
