     Case: 15-41677      Document: 00513717589         Page: 1    Date Filed: 10/13/2016


           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                   No. 15-41677 c/w                       October 13, 2016
                                    No. 15-41679
                                                                            Lyle W. Cayce
                                  Summary Calendar                               Clerk




UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GARY WAYNE CASTLE,

                                                 Defendant-Appellant




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:09-CR-218-1
                            USDC No. 2:09-CR-571-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Gary Wayne Castle pleaded guilty to one count of possession with intent
to distribute marijuana and one count of failure to appear. He was sentenced
to a total term of 65 months of imprisonment, a five-year term of supervised



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41679

release as to the drug offense, and a three-year term of supervised release as
No. 15-41677 c/w No. 15-41679 to the failure to appear offense. On appeal,
Castle contends that his sentence was substantively unreasonable because the
district court, when imposing a sentence it understood to be above the
applicable guidelines range, gave undue weight to one of the 18 U.S.C. §
3553(a) factors.     Alternatively, Castle contends that the case should be
remanded for correction of the judgments to reflect that he was sentenced to
60 months on the drug offense and five months on the failure to appear offense,
to be served consecutively.
      Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we engage in
a bifurcated review of the sentence imposed by the district court. United States
v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we consider
whether the district court committed a “significant procedural error.” Gall,
552 U.S. at 51. If there is no error or the error is harmless, we may proceed to
the second step and review the substantive reasonableness of the sentence
imposed for an abuse of discretion. Id.; see also Delgado-Martinez, 564 F.3d at
751-53.
      Assuming that the sentence imposed in this case was above-guidelines,
the presumption of reasonableness does not apply. See Gall, 552 U.S. at 51.
While we “may consider the extent of the deviation,” we must also “give due
deference to the district court’s decision that the [§] 3553(a) factors, as a whole,
justify the extent of the variance.” United States v. Churchwell, 807 F.3d 107,
123 (5th Cir. 2015). A sentence above the Guidelines “unreasonably fails to
reflect the statutory sentencing factors . . . where it (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



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in balancing the sentencing factors.” Id. (internal quotation marks and citation
omitted).
      Here, the district court specifically stated that the sentence was justified
in light of the § 3553(a) factors, and referenced both the seriousness of the
underlying drug offense and the need to deter future criminal conduct. The
district court listened to Castle describe how he trafficked marijuana on two
separate occasions, totaling more than 157 kilograms; noted that Castle had
absconded for six years after committing the drug offense; and adopted the
presentence report, which discussed Castle’s criminal history. The extent of
the departure or variance, five months above the guidelines range of 60
months, is well within the range of departures or variances that we have
upheld. See United States v. McElwee, 646 F.3d 328, 344-45 (5th Cir. 2011).
Given the significant deference that is due a district court’s consideration of
the § 3553(a) factors and the district court’s explanation of its sentencing
decision, Castle has not demonstrated that his sentence was substantively
unreasonable. See Gall, 552 U.S. at 51-53.
      We also decline to remand for correction of the judgments.              The
judgments as written accurately reflect the law and the district court’s
intentions. See 18 U.S.C. § 3146(b)(2); 18 U.S.C. § 3147.
      AFFIRMED.




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