     Case: 14-10522      Document: 00512920907         Page: 1    Date Filed: 01/30/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10522
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 30, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

THOMAS STACY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-190-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Thomas Stacy appeals his 48-month sentence for bank robbery. The
district court departed upward from a guidelines range of 30 to 37 months after
determining that Stacy’s criminal history category of I substantially under-
represented the likelihood that he would reoffend. Stacy contends that the
departure under U.S.S.G. § 4A1.3 was substantively unreasonable under the
factors in 18 U.S.C. § 3553(a)(2) because it fails to account for his history and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10522    Document: 00512920907     Page: 2   Date Filed: 01/30/2015


                                 No. 14-10522

characteristics--including his age, alcohol-related mental issues, and physical
health problems--and because of the need to provide him with medical care in
the most effective manner. He notes that he was 73 years old at the time of
sentencing with a history of depression and alcoholism. He argues that his
offense was the result of his alcoholism and that his age reduces any risk of
recidivism. He further argues that his two prior bank robbery convictions
resulted from nonviolent robberies that occurred 21 and 27 years earlier.
Additionally, Stacy argues that his two recent nonviolent attempts at bank
robbery were mitigated by his age, noting that the tellers simply refused his
written notes asking for money in each instance. According to Stacy, he would
benefit from alcohol treatment rather than incarceration to promote
rehabilitation.
      We review “the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 46,
51 (2007). In the context of a guidelines departure, we evaluate both “the
district court’s decision to depart upwardly and the extent of that departure
for abuse of discretion.” United States v. Zuniga-Peralta, 442 F.3d 345, 347
(5th Cir. 2006) (internal quotation marks and citation omitted). There is no
abuse of discretion if the court’s reasons for departing advance the objectives
of § 3553(a)(2) and are justified by the facts of the case. Id. at 347; see also
United States v. Zelaya-Rosales, 707 F.3d 542, 546 (5th Cir. 2013).
      Section 4A1.3 provides that, where “reliable information indicates that
the defendant’s criminal history category substantially under-represents . . .
the likelihood that [he] will commit other crimes, an upward departure may be
warranted.” § 4A1.3(a)(1). Permissible bases for an upward departure include
prior sentences not used in computing the criminal history category and




                                       2
    Case: 14-10522       Document: 00512920907   Page: 3   Date Filed: 01/30/2015


                                  No. 14-10522

“[p]rior similar adult conduct not resulting in a criminal conviction.” See
§ 4A1.3(a)(2)(A), (E).
      The district court considered Stacy’s age and health at sentencing but
found that his “very serious crime” of bank robbery “[wa]sn’t aberrant” in light
of his two prior federal convictions for bank robbery and his “significant other
criminal history.” The court emphasized that each attempt by Stacy to rob a
bank created a risk of harm to others, even if he did not use violence or the
threat of violence. Citing § 3553(a)(2), the court noted that the 48-month
sentence was necessary to reflect the seriousness of the offense, provide just
punishment, promote respect for the law, afford adequate deterrence, and
protect the public from further crimes by Stacy. The court noted that the
sentence took into consideration Stacy’s two prior bank robbery convictions
and his two recent bank robbery attempts, which it considered “crimes of
violence and attempted crimes of violence.”
      Stacy’s pattern of robbing and attempting to rob banks, which has
spanned four decades and continued into his 70s, supports the district court’s
finding that a criminal history category of I substantially under-represented
the likelihood that he would reoffend. His argument that the instant bank
robbery and the two recent attempts were the result of his alcohol abuse does
not diminish the likelihood of recidivism, given his lengthy and frequently
losing battle with alcoholism. The 48-month sentence (with a recommendation
that Stacy receive comprehensive drug treatment from the Bureau of Prisons)
was consistent with the § 3553(a) factors, which provide that a sentence should
(A) reflect the seriousness of the offense, promote respect for the law, and
provide just punishment; (B) give adequate deterrence for criminal conduct;
(C) protect the public from further crimes by the defendant; and (D) provide
the defendant with needed educational training, medical care, or other



                                        3
       Case: 14-10522   Document: 00512920907   Page: 4   Date Filed: 01/30/2015


                                 No. 14-10522

correctional treatment. Because the district court’s reasons for the departure
advanced the objectives of § 3553(a)(2) and were justified by the facts of the
case, the court did not abuse its discretion. See Zuniga-Peralta, 442 F.3d at
347.
        AFFIRMED.




                                       4
