     Case: 15-10119      Document: 00513293374         Page: 1    Date Filed: 12/03/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-10119                                  FILED
                                  Summary Calendar                        December 3, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DARIUS DEWAYNE STEVENSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CR-191


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Darius Dewayne Stevenson pleaded guilty to being a felon in possession
of a firearm and was sentenced above the advisory guidelines range to 48
months of imprisonment and a three-year term of supervised release. He now
appeals, arguing that the district court offered insufficient explanations for the
inadequacy of the guidelines range and the extent of the upward variance.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10119

      We review sentences for reasonableness by engaging in a bifurcated
review. Gall v. United States, 552 U.S. 38, 49-51 (2007). We must ensure that
the sentencing court committed no significant procedural error          such as
improperly calculating the guidelines range and failing to adequately explain
the reasons for the chosen sentence, including an explanation for any variance
from the advisory guidelines range. Id. at 51. In evaluating whether a district
court committed a procedural error in the sentencing determination, we
employ a de novo standard of review. United States v. Garcia Mendoza, 587
F.3d 682, 688 (5th Cir. 2009). A district court procedurally errs where it fails
to explain sufficiently the sentence, including “any deviation from the
Guidelines range.” Gall, 552 U.S. at 51. “The sentencing judge should set forth
enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). In
the case of a sentence outside the guidelines range, the sentencing judge should
“carefully articulate the reasons” for finding the sentence imposed to be proper
based on the facts of the case. United States v. Mares, 402 F.3d 511, 519 (5th
Cir. 2005). Where the record reflects that the sentencing judge heard the
parties’ arguments and gave the defendant and his counsel the chance to speak
and offer mitigating evidence before finding that a variance was justified based
on the 18 U.S.C. § 3553(a) factors, no further explanation is required. See
United States v. Fraga, 704 F.3d 432, 439 (5th Cir. 2013).
      First, Stevenson avers that the district court insufficiently explained the
inadequacy of the guidelines range. At sentencing, the district court adopted
the factual findings of the presentence report and its addendum and permitted
defense counsel to present an argument against the variance. After hearing
these arguments and Stevenson’s apology for his actions, the district court
conducted a thorough review of Stevenson’s criminal history, including his

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                                 No. 15-10119

arrests and convictions for controlled substances violations, trespass, unlawful
carrying of a weapon, robbery, and attempt to hinder apprehension or
prosecution of a known felon. The district court also cited several instances in
which Stevenson was uncooperative and violent during police encounters. It
stated an overarching concern over Stevenson’s disturbing pattern of behavior,
including a statement to police in which he promised to seek revenge on the
family members of any person who would shoot him. After specifically listing
most of the statutory sentencing factors, the district court expressly stated its
view that an above-guidelines sentence was necessary to satisfy the goals of
§ 3553(a). Given that it heard the parties’ arguments, permitted Stevenson
and his counsel to present mitigating evidence, and carefully articulated its
reasons for the upward variance based on the § 3553(a) factors, the district
court was not required to offer additional explanation for the sentence. See
Fraga, 704 F.3d at 439; Mares, 402 F.3d at 519.
      Second, Stevenson contends that the district court offered inadequate
reasons for the degree of the variance. To the extent that Stevenson is arguing
that the district court was required to follow the paradigm for departures set
forth in U.S.S.G. § 4A1.3, his assertion is without merit. Because the district
court imposed a variance rather than a departure based on the inadequacy of
Stevenson’s criminal history category, the incremental methodology set out in
§ 4A1.3 is not applicable. See United States v. Mejia-Huerta, 480 F.3d 713, 723
(5th Cir. 2007). In addition, Stevenson has not shown that the lack of any
sentencing recommendations by the presentence report or the Government as
to the extent of the variance affects our ability to engage in a meaningful
review of the sentence.     As discussed above, the district court carefully
reviewed Stevenson’s criminal history and expressed its concern over his
dangerous and disturbing patterns of behavior, thereby providing this court an



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                                 No. 15-10119

ample record on which to review the context and procedural reasonableness of
Stevenson’s sentence. See Rita, 551 U.S. at 356.
      Moreover, we have upheld upward variances or departures of similar or
greater magnitudes than the variance in this case.        See United States v.
Gutierrez, 635 F.3d 148, 155 n.34 (5th Cir. 2011) (collecting cases); United
States v. Smith, 440 F.3d 704, 709-10 & n.5 (5th Cir. 2006) (upholding 60-
month sentence as reasonable variance from guidelines range of 21 to 27
months). Given Stevenson’s opportunity to argue against the variance and the
district court’s thorough articulation of its reasons for imposing it, Stevenson
has not demonstrated any procedural error by the district court related to its
explanation for the upward variance. See Fraga, 704 F.3d at 439. Even if the
district court should have offered additional reasons for the variance, any error
was harmless. See United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th
Cir. 2009). The judgment of the district court should is AFFIRMED.




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