     Case: 11-40685     Document: 00511775387         Page: 1     Date Filed: 03/02/2012




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

                                                                            FILED
                                                                           March 2, 2012
                                     No. 11-40685
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CALVIN ANTHONY WATSON,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-168-2


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Calvin Anthony Watson was indicted on one count of conspiracy to possess
with intent to distribute less than 50 kilograms of marijuana, possessing with
intent to distribute less than 50 kilograms of marijuana, and being found
unlawfully present in the United States after having been deported. Watson
pleaded guilty, pursuant to a plea agreement, to the charge of being found
unlawfully present in the United States. The district court sentenced him to a
110-month prison term, which was 39 months higher then the top end of 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40685    Document: 00511775387      Page: 2   Date Filed: 03/02/2012

                                  No. 11-40685

advisory guidelines range. The court also revoked Watson’s supervised release
and sentenced him to a consecutive 10-month prison term.
      Watson appeals his sentence, arguing that it is substantively
unreasonable. Because he did not object in the district court, our review is for
plain error. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). To
prevail, Watson must show an error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). We
then have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.        Id.      An
above-guidelines sentence is unreasonable if it either “(1) does not account for
a factor that 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. Peltier, 505 F.3d 389, 392
(5th Cir. 2007) (internal quotation marks and citation omitted).          We also
consider the extent of the variance from the guidelines range. United States v.
Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
      In Watson’s view, the court did not specify which of his characteristics or
precisely what about his history warranted such a high sentence. However, the
district court found Watson to be a liar and an “extremely dangerous” criminal
who had not learned his lesson even after a lengthy prison sentence, specifically
remarking on lies he told to the courts, the extent of the drug conspiracy he had
been involved in, the facts surrounding an attempted murder he had committed,
and his problem with assaults while in prison.
      Watson also contends that the danger to the public posed by his illegal
reentry is not high and a within-guidelines sentence would have been sufficient
to deter him from reentering the United States. The district court determined
that the nature of Watson’s current offense was outweighed by other concerns
including his history and characteristics, the need for deterrence and the need
to protect the public. Watson’s disagreement with the district court’s weighing

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                                  No. 11-40685

of the various sentencing factors does not amount to a showing that the court
erred, plainly or otherwise. See Gall v. United States, 552 U.S. 38, 51 (2007)
(explaining that appellate courts will give “due deference” to the district court’s
assessment of sentencing factors).
      The district court, Watson argues, erred by taking into account that he
possessed marijuana despite that the related charges were dismissed and his
codefendant testified that Watson did not pay her to transport the drugs.
However, statements in the presentence report and from Watson and defense
counsel at sentencing supported it, and so there was no clear or obvious error.
See Puckett, 556 U.S. at 135; see also United States v. Goncalves, 613 F.3d 601,
605 (5th Cir. 2010) (explaining that facts supporting a sentence must be found
by a preponderance of the evidence). Moreover, given the court’s consideration
of the myriad of factors supporting an above-guidelines sentence, Watson cannot
show a violation of his substantial rights. See United States v. Williams, 620
F.3d 483, 495-96 (5th Cir. 2010), cert. denied, 131 S. Ct 1534 (2011).
      Next, Watson contends that the guidelines calculation had already taken
into account his prior offenses and so the district court should not have increased
the sentence on that basis, but district courts are free to vary upward based on
factors already taken into account by the Guidelines. United States v. Williams,
517 F.3d 801, 811-12 (5th Cir. 2008). Finally, to the extent that Watson argues
that the his consecutive sentences for being found illegally present on the United
States and upon revocation of supervised release produce an unreasonable total
prison term, this court has rejected similar arguments. See United States v.
Lopez-Velasquez, 526 F.3d 804, 808-09 (5th Cir. 2008)
      Although the sentence imposed by the district court represents a
substantial increase from the guidelines range, the district court was in the best
position to judge Watson and the circumstances of the offense, and the reasons
given by the district court sufficiently support the sentence. See Williams, 517
F.3d at 812-13. Accordingly, the judgment is AFFIRMED.

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