     Case: 14-10499      Document: 00512881774         Page: 1    Date Filed: 12/24/2014




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 14-10499
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 24, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DARRELL GENE HESTAND,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-206-2


Before DeMOSS, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Darrell Gene Hestand appeals the sentence imposed following his guilty
plea conviction for conspiracy to possess with intent to distribute a mixture or
substance containing methamphetamine. The district court, assuming that
the then-pending and now effective amendment to the drug guidelines was
applicable, determined that Hestand’s guidelines sentence range was 140-175




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10499

months of imprisonment, and it sentenced Hestand above the guidelines range
to the statutory maximum sentence of 240 months of imprisonment.
      Hestand argues that the sentence was unreasonable because it
represented a clear error of judgment in balancing the sentencing factors. He
maintains that the guidelines range was unreasonably high because the purity
of the methamphetamine increased his offense level by six even though the
purity of the methamphetamine did not correspond to increased potency or
culpability. He argues that the high purity of the methamphetamine was due
to Mexican methamphetamine producers switching to a P2P method of
production due to Mexican laws restricting access to ephedrine and
pseudoephedrine. He contends that the P2P method results in the production
of dl-methamphetamine that is higher in purity but lower in potency than the
d-methamphetamine        produced     using    the    pseudoephedrine/ephedrine
reduction method. While Hestand acknowledges that he has a significant
criminal history, he notes that most of his offenses were minor and that the
longest custodial sentence he had previously served was 170 days.               He
maintains that any increase in his sentence that could be appropriate given
his criminal history is outweighed by the unwarranted increase to his
guidelines range caused by the purity of the methamphetamine and that the
extent of the upward variance was unwarranted.
      We review the “substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007). We consider “the totality of the circumstances, including the extent of
any variance from the Guidelines range” and “must give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent
of the variance.” Id. “A non-Guideline sentence unreasonably fails to reflect
the statutory sentencing factors where it (1) does not account for a factor that



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                                  No. 14-10499

should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in
balancing the sentencing factors.” United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006).
      While it would have been permissible for the district court to base the
sentence on a disagreement with the Guidelines, such as the argument that
Hestand raises concerning methamphetamine purity, the district court was
not required to disagree with the Guidelines, and the district court’s rejection
of Hestand’s purity argument does not make the sentence unreasonable. See
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
Furthermore, Hestand’s purity argument is based upon the presumption that
the methamphetamine that he possessed was more pure and less potent
because it was dl-methamphetamine, not d-methamphetamine.                Hestand,
however, produced no evidence showing that the methamphetamine he
possessed was dl-methamphetamine.
      The district court’s upward variance was based upon Hestand’s long
criminal history and the failure of short sentences to reform Hestand’s
behavior. The record shows that the district court’s concern about Hestand’s
criminal history was well founded as Hestand had 12 convictions in the 12
years preceding his arrest for the present offense, including convictions for
serious offenses such as possession of cocaine with intent to distribute, injury
to a child, burglary of a vehicle, two counts of forgery, and two counts of driving
while intoxicated. While Hestand maintains that his criminal history was not
sufficiently serious to warrant an upward variance because he had never
served a sentence longer than 170 days, the district court did not abuse its
discretion by making an upward variance based upon Hestand’s long criminal
history and the lenient sentences he had previously received. See United



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                                 No. 14-10499

States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008); United States v. Lee, 358
F.3d 315, 328-29 (5th Cir. 2004). Furthermore, the amount of the variance, 65
months above the top of the assumed guidelines range, was not unreasonable.
See Brantley, 537 F.3d at 348, 350; United States v. Smith, 417 F.3d 483, 492-
93 (5th Cir. 2005).
      AFFIRMED.




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