     Case: 13-31126       Document: 00512688872         Page: 1     Date Filed: 07/07/2014




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

                                     No. 13-31126                               FILED
                                   Summary Calendar                          July 7, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MARCUS PATTERSON CAREY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:10-CR-310-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Marcus Patterson Carey appeals the sentence imposed after his guilty-
plea conviction for second-degree murder and attempted second-degree murder
within the maritime and special jurisdiction of the United States, in violation
of 18 U.S.C. §§ 1111 (murder) and 1113 (attempt to commit murder or
manslaughter).       He contends the total prison term of 360 months, which




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-31126

exceeds the advisory Sentencing Guidelines range of 188 to 235 months’
imprisonment, was procedurally and substantively unreasonable.
      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 Guidelines-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).
      Carey contends the district court erred procedurally by refusing to
consider mitigating evidence at sentencing, based on the understanding that
the Government already considered the evidence during plea negotiations. He
asserts the court made baseless assumptions about the plea negotiations,
deferred its sentencing obligations to the Government, and did not consider the
sentencing factors provided in 18 U.S.C. § 3553(a). Because Carey did not raise
this issue in district court, review is for plain error only.
      Under that standard, Carey must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he shows such reversible plain error, we have the
discretion to correct the error, but should do so only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. Id.
      The record establishes the Government negotiated a plea agreement
under which Carey pleaded guilty to second-degree murder and attempted
second-degree murder, instead of the original charges of first-degree murder
and attempted first-degree murder. Further, the Government agreed, under
Federal Rule of Criminal Procedure 11(c)(1)(C) (parties’ agreement on specific



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                                  No. 13-31126

sentence binding on district court if accepts plea agreement), to restrict the
maximum prison term to 30 years, forgoing a possible sentence of life
imprisonment or the death penalty. Carey has not shown the district court
committed clear or obvious error by considering the benefits Carey received as
a result of the plea agreement. See United States v. Garcia-Rodriguez, 415
F.3d 452, 456 (5th Cir. 2005) (“[I]f any error was committed by the district
court at sentencing, it was far from ‘plain’”.). Also, the record reflects the court
assessed the mitigating evidence and nonetheless concluded an upward
departure was appropriate.
      Next, Carey contends: the court erred procedurally in departing
upwardly under Sentencing Guideline Policy Statement § 5K2.8 (extreme
conduct), claiming: his offenses did not involve extreme conduct; moreover, the
court’s factual findings did not support that his offenses were committed in a
manner that warranted the departure. He further asserts the extent of the
departure was excessive. “[W]e review the district court’s decision to depart
upwardly and the extent of the departure for abuse of discretion”. United
States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (citation and
internal quotation marks omitted).
      The record supports the conclusion that the instant offenses involved
extreme conduct. See U.S.S.G. § 5K2.8. Carey, without provocation and while
the victims slept, attacked them without warning. He struck them in the head
multiple times with a hammer, mortally wounding one and severely injuring
the other. He then stabbed the victims repeatedly in the head and neck area
with a knife, inflicting another fatal injury on the now-deceased victim and
using such force on the surviving victim that the knife broke. Also, Carey did
not help the victims; instead, he prolonged their pain and delayed assistance,
including pacing for up to 40 minutes, smoking cigarettes, and watching the



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                                 No. 13-31126

surviving victim as he bled. He also asked the surviving victim whether he
wanted to be choked “to end it sooner.” These facts support the district court’s
decision to depart upward. The extent of the departure—which equaled a four-
level increase and was 125 months above the advisory Guidelines range of 188
to 235 months—was similar to, or less severe than, departures we have
affirmed. Cf. United States v. Smith, 417 F.3d 483, 491–93 (5th Cir. 2005);
United States v. Saldana, 427 F.3d 298, 312–13 (5th Cir. 2005); United States
v. Daughenbaugh, 49 F.3d 171, 174–75 (5th Cir. 1995). There was no abuse of
discretion.
      Finally, Carey contends his sentence was substantively unreasonable.
Relying on jurisprudence addressing non-Guidelines variances, Carey
maintains the court did not account properly for his mitigation evidence,
improperly gave significant weight to whether the Government considered the
mitigation evidence in his plea deal, and clearly erred in balancing the
sentencing factors. Here, the court imposed a departure rather than a non-
Guidelines variance. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir.
2008) (identifying distinction between variance and departure). In any event,
the record reflects the court considered the mitigation evidence, as both set
forth in the presentence investigation report and detailed by Carey at
sentencing; and Carey has not shown the court was barred from considering
the plea deal he received. Carey disagrees with the court’s weighing of the
§ 3553(a) factors and asks this court to reevaluate the decision; but, given the
deference due to a district court’s assessment of those factors and its ultimate
sentencing decision, Carey has not shown his sentence is substantively
unreasonable.
      AFFIRMED.




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