     Case: 17-30434      Document: 00514344979         Page: 1    Date Filed: 02/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 17-30434                                FILED
                                  Summary Calendar                       February 12, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JEREMY JAMES WASHINGTON, also known as Worm,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CR-83-28


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jeremy James Washington appeals the sentence imposed following his
conviction for conspiracy to distribute and possess with intent to distribute
cocaine and unlawful use of a communications facility. He was sentenced
above the guidelines range to concurrent sentences of 60 months of
imprisonment on the drug charge and 48 months of imprisonment on the
communications charge and a total of three years of supervised release. He


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30434

contends that the district court violated Rule 32(i)(1)(C) of the Federal Rules
of Criminal Procedure and deprived him of due process when it imposed an
upward variance without notifying him of its intent to do so. He also contends
that the 60-month sentence is substantively unreasonable.
      We assume for purposes of the analysis that Washington preserved these
claims of error. See United States v. Hebert, 813 F.3d 551, 559 (5th Cir. 2015).
A preserved claim of error regarding lack of notice is reviewed de novo. United
States v. Garcia, 797 F.3d 320, 322 & n.3 (5th Cir. 2015). Washington had no
“expectation subject to due process protection” of a sentence within the
guidelines range by virtue of the advisory nature of the Sentencing Guidelines.
Irizarry v. United States, 553 U.S. 708, 713 (2008). He was therefore on notice
that the district court might impose an upward variance under the 18 U.S.C.
§ 3553(a) factors. See United States v. Mejia-Huerta, 480 F.3d 713, 722 (5th
Cir. 2007). The presentence report’s description and his personal knowledge
of his criminal history put him on notice of the factual basis for the upward
variance. See United States v. Stanford, 823 F.3d 814, 846-48 (5th Cir.), cert.
denied, 137 S. Ct. 453 (2016); Garcia, 797 F.3d at 323-25; Mejia-Huerta, 480
F.3d at 722-23. Therefore, he had a reasonable opportunity to comment on
these matters, and there was no violation of Rule 32(i)(1)(C) or deprivation of
due process.
      The substantive reasonableness of a sentence is reviewed for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The district court
gave a “thorough justification” for the variance in this case. United States v.
McElwee, 646 F.3d 328, 344 (5th Cir. 2011). The district court concluded that
Washington’s prior arrests and pending charges and the conversation during
which Washington offered to kill someone for his codefendant and recounted
how he had shot someone were aggravating factors that warranted an upward



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                                  No. 17-30434

variance.    The extent of the variance, 30 months above the guidelines
maximum of 30 months, is within the range of variances we have upheld. See
id. at 345. Given the significant deference that is due to a district court’s
consideration of the § 3553(a) factors, see Gall, 552 U.S. at 51, and the district
court’s reasons for its sentencing decision, Washington has not demonstrated
that the sentence is substantively unreasonable, see McElwee, 646 F.3d at 344-
45.
       AFFIRMED.




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