     Case: 17-10779      Document: 00514485249         Page: 1    Date Filed: 05/23/2018




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

                                                                               FILED
                                    No. 17-10779                           May 23, 2018
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

WINDELL JOE BRIGGS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-19-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Windell Joe Briggs pleaded guilty to possession of stolen mail in violation
of 18 U.S.C. § 1708 and was sentenced to 40 months of imprisonment. Briggs
argues that the district court’s sentence of 40 months, above his advisory
guidelines range of 15 to 21 months, was substantively unreasonable. He
asserts that the district court gave significant weight to an improper ground
and that the sentence imposed represents a clear error of judgment in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10779    Document: 00514485249    Page: 2   Date Filed: 05/23/2018


                                No. 17-10779

balancing the sentencing factors. Briggs maintains that it was improper for
the district court to impose a variance based on his criminal history because
his criminal history did not meet the criteria for a guideline departure under
U.S.S.G. § 4A1.3. He further maintains that the sentence is greater than
necessary to achieve the sentencing goals set forth in 18 U.S.C. §3553(a).
      This court generally reviews the substantive reasonableness of a
sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51
(2007). The Government argues that Briggs did not raise before the district
court the specific challenges he now raises on appeal. However, we need not
determine whether plain error review is appropriate because Brigg’s
arguments fail even under an abuse-of-discretion standard of review.
      The district court imposed an upward variance based on the sentencing
factors listed in § 3553(a). Contrary to Briggs’s suggestion, in imposing a
variance, a district court is not required to follow the methodology § 4A1.3
prescribes for departures. United States v. Gutierrez, 635 F.3d 148, 152 (5th
Cir. 2011). And the court’s consideration of the failure of Briggs’s criminal
history score to reflect his criminal history was not an improper consideration
and does not demonstrate a clear error of judgment in balancing the sentencing
factors. See United States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006) (“A
defendant’s criminal history is one of the factors that a court may consider in
imposing a non-Guideline sentence.”). The district court’s statement of its
reasons outlining Brigg’s substantial criminal history supports the imposition
of a 40-month sentence.
      AFFIRMED.




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