     Case: 13-10737       Document: 00512593771         Page: 1     Date Filed: 04/11/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                     No. 13-10737                                  FILED
                                   Summary Calendar                            April 11, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ANTHONY TROY JOHNSON,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-225-2


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Anthony Troy Johnson challenges the 48-month sentence imposed
following his guilty-plea conviction for wire fraud. The district court stated the
sentence was a variance from the advisory Guidelines sentencing range of 24
to 30 months’ imprisonment and, alternatively, a departure pursuant to
U.S.S.G. § 4A1.3 (Departures Based on Inadequacy of Criminal History
Category (Policy Statement)). Johnson contends the sentence, as an upward


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 13-10737     Document: 00512593771      Page: 2    Date Filed: 04/11/2014


                                  No. 13-10737

departure, is unreasonable because the court misinterpreted departure
Guidelines. He also contends the upward departure influenced the upward
variance.
      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 Guideline-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); United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005). Johnson claims procedural error.
(He does not offer any analysis regarding substantive reasonableness, vel non.)
      “‘Departure’ . . . refers only to non-Guidelines sentences imposed under
the [Guidelines] framework”. Irizarry v. United States, 553 U.S. 708, 714
(2008).     On the other hand, a variance is a sentence imposed outside the
Guidelines framework. United States v. Jacobs, 635 F.3d 778, 782 (5th Cir.
2011). “The district court’s authority to impose a variance is discretionary and
stems from 18 U.S.C. § 3553(a).” Id. (citation omitted).
      It is unnecessary to determine whether the district court erred by
departing under the Guidelines because the court, alternatively, imposed an
upward variance. E.g., United States v. Bonilla, 524 F.3d 647, 656–57, 59 (5th
Cir. 2008). Furthermore, the record does not support Johnson’s assertion that
the allegedly erroneous upward departure influenced the upward variance.
      AFFIRMED.




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