     Case: 09-20703     Document: 00511232830          Page: 1    Date Filed: 09/14/2010




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

                                                 FILED
                                                                         September 14, 2010
                                     No. 09-20703
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

STEVEN ANTHONY GIBSON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-173-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Steven Anthony Gibson appeals the above-guidelines sentence imposed
following his guilty-plea conviction for making a false claim upon or against an
agency of the United States in violation of 18 U.S.C. § 287. Gibson argues that
his sentence is procedurally and substantively unreasonable because the district
court did not consider whether an upward departure under the Guidelines was
appropriate before imposing an upward variance, because the district court did
not adequately explain the extent of the upward variance, and because the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20703    Document: 00511232830 Page: 2        Date Filed: 09/14/2010
                                 No. 09-20703

sentence was greater than necessary to achieve the goals of sentencing. He also
argues that his case should be remanded for correction of the written judgment
pursuant to Federal Rule of Criminal Procedure 36 because the written
judgment does not reflect a remittance of the $100 special assessment.
       Sentences, whether inside or outside the advisory guidelines range, are
reviewed under an abuse of discretion standard for procedural error and
substantive reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007).
Gibson’s argument that the district court should have first considered whether
an upward departure under the Guidelines was appropriate before imposing an
upward variance, however, is raised for the first time on appeal. Accordingly,
we review that argument for plain error. See United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007). Gibson has not shown clear or obvious error with
respect to his argument that the district court was required to consider an
upward departure pursuant to U.S.S.G. §4A1.3 prior to imposing an upward
variance from the sentencing guidelines range. See United States v. Mejia-
Huerta, 480 F.3d 713, 723 (5th Cir. 2007); United States v. Smith, 440 F.3d 704,
707 (5th Cir. 2006). We also note that, as in Mejia-Huerta, the upward variance
in this case was based not only on Gibson’s criminal history but on numerous 18
U.S.C. § 3553(a) factors, including the need to deter future criminal conduct and
the need to protect the public from his crimes. See Mejia-Huerta, 480 F.3d at
723.
       The district court stated reasons for its upward variance, including the
extensiveness of Gibson’s criminal history, the fact that his crimes were getting
more serious, the fact that he had not successfully completed parole or probation,
and the need to protect the public from his crimes. In addition, the district court
considered Gibson’s physical health, his mental health, and his drug addiction,
and it concluded that many of his health problems stemmed from his drug
addiction.



                                        2
   Case: 09-20703   Document: 00511232830 Page: 3        Date Filed: 09/14/2010
                                No. 09-20703

      Gibson was sentenced to 36 months of imprisonment, a 15-month upward
variance from the top of his 15-21 month advisory guidelines sentencing range.
We have upheld variances greater than the increase to Gibson’s sentence.
See United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008); United States
v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006); United States v. Smith, 417
F.3d 483, 492-93 & n.40 (5th Cir. 2005).
      In sum, the district court did not abuse its discretion. The sentence
imposed “was reasonable under the totality of the relevant statutory factors.”
Brantley, 537 F.3d at 349. Finally, although the district court mistakenly stated
during the sentencing proceeding that the Government had moved to remit the
special assessment, the Government had not so moved, and, in any event, the
district court did not order the remittance of the special assessment.
Accordingly, the district court’s judgment is AFFIRMED.




                                        3
