     Case: 14-60845      Document: 00513220154         Page: 1    Date Filed: 10/06/2015




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

                                    No. 14-60845
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        October 6, 2015
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JEMARIOUS JAVAE FAIR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:13-CR-165


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jemarious Javae Fair appeals the within-guidelines sentence imposed
following his guilty plea to being a felon in possession of a firearm. He argues
for the first time on appeal that the district court’s “upward variance” from the
advisory guidelines range was procedurally and substantively unreasonable.
On plain error review, we affirm. See Puckett v. United States, 556 U.S. 129,
135 (2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60845

       Fair argues that the district court committed procedural error when it
failed to give adequate reasons for its “upward variance.” Fair’s contention
that the district court imposed a non-guideline sentence, however, is frivolous.
See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). 1 Fair was
instead sentenced at the low end of the advisory guidelines range, and a district
court’s explanation for a sentence imposed within the recommended guidelines
range can be both brief and legally sufficient. Rita v. United States, 551 U.S.
338, 356 (2007); United States v. Mondragon-Santiago, 564 F.3d 357, 362 (5th
Cir. 2009). Fair’s implicit argument that the district court should not have
found, for sentencing enhancement purposes, that he committed armed
robbery is belied by his representation in the PSR “that sufficient evidence
exists for [the armed robbery] to be shown by a preponderance of the evidence,”
which is the standard for sentencing. See United States v. Harper, 448 F.3d
732, 735 (5th Cir. 2006)(judge is empowered to decide facts relevant to
sentencing guidelines range by a preponderance of the evidence). Our review
of the record reveals no procedural error, plain or otherwise, in this regard.
See Rita, 551 U.S. at 356.
       Fair also challenges the substantive reasonableness of the sentence,
arguing that the district court gave improper weight to his criminal history.
The record reveals, however, that the district court considered the nature and
circumstances of the offense, Fair’s history and characteristics, and the need
for the sentence imposed to protect the public. See 18 U.S.C. § 3553(a)(1),
(2)(C). Furthermore, “[a] discretionary sentence imposed within a properly
calculated guidelines range is presumptively reasonable.” United States v.

       1 Fair’s original guidelines range was lower than the one ultimately used. The later
recalculation and increase came not from a “variance” but from Fair’s conduct in seeking to
bribe a witness to change his testimony. That conduct resulted in Fair losing the benefit of
the acceptance of responsibility decrease and gaining obstruction of justice points which
raised his guidelines range.


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                                No. 14-60845

Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Fair therefore has not
demonstrated clear or obvious error with regard to the substantive
reasonableness of his sentence. See Puckett, 556 U.S. at 135.
     AFFIRMED.




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