     Case: 17-30622       Document: 00514547437         Page: 1     Date Filed: 07/10/2018




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

                                                                                 FILED
                                     No. 17-30622                            July 10, 2018
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

SONNY SCOTT,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:17-CR-23-1


Before BARKSDALE, OWEN, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Sonny Scott challenges his sentence of 100 months’ imprisonment,
imposed following his guilty-plea conviction for being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). In challenging the substantive
reasonableness of his sentence, he claims, inter alia, the district court abused
its discretion in departing upward from his advisory Guidelines sentencing
range, and in the degree to which it departed. U.S.S.G. § 4A1.3(a).


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-30622

      As noted, Scott pleaded guilty to being a felon in possession of a firearm.
Before sentencing, the court notified Scott of its intention to consider an
upward departure, pursuant to Guideline 4A1.3(a), because: Scott’s criminal
history was “continuous and extensive”; and the court had obtained reliable
information    that    Scott’s    criminal-history     category     substantially
underrepresented the seriousness of his criminal history and the likelihood he
would commit other crimes. Scott filed a written objection, contending an
upward departure would result in an unreasonable sentence.
      At sentencing, the court ruled Scott’s advisory Guidelines sentencing
range was 57–71 months’ imprisonment, reflecting a base-offense level of 21
and a criminal-history category of IV.       After considering Scott’s pattern of
criminal behavior and the need ensure safety of the community, the court
determined a sentence within Scott’s advisory Guidelines sentencing range
would be too lenient. It, therefore, considered the impact of increasing Scott’s
criminal-history category from IV to VI.        Determining a criminal-history
category of VI with Scott’s base-offense level of 21 did not yield a high enough
sentencing range, the court ruled a base-offense level of 23 with a criminal-
history category of VI, giving Scott an advisory sentencing range of 92 to 115
months’ imprisonment, was appropriate to address the court’s concerns.
      The court sentenced Scott to 100 months’ imprisonment, noting that, if
it erred in departing upward, it would have imposed the same sentence by
variance, considering the 18 U.S.C. § 3553(a) sentencing factors. Scott did not
object after the sentence was imposed.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an



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ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      First considered is Scott’s challenge to the court’s decision to depart from
the advisory Guidelines sentencing range, to which Scott objected. This court
reviews “the district court’s decision to depart upwardly and the extent of that
departure for abuse of discretion”. United States v. Zuniga-Peralta, 442 F.3d
345, 347 (5th Cir. 2006) (quoting United States v. Saldana, 427 F.3d 298, 308
(5th Cir. 2005)).
      In his reply brief, however, Scott clarified that he is not challenging the
procedure by which the court determined the extent of departure. Therefore,
that procedural challenge is not at issue.
      On the other hand, for his challenge to the departure’s being made, Scott
asserts his crime and criminal history were not sufficiently “egregious” to
permit the court to departure upward under Guideline 4A1.3(a).                The
comments to Guideline 4A1.3 state an “egregious” criminal history is just one
factor that may “warrant[]” an upward departure; in short, an “egregious”
crime or criminal history is not a requirement for Guideline 4A1.3. U.S.S.G.
§ 4A1.3 cmt. 2(B).
      It follows that, even if Scott’s crime and criminal history are not
“egregious”, the court did not abuse its discretion in relying on other relevant
factors, including, inter alia: his prior sentences exceeded one year, and arose
from independent crimes; his spending a large percentage of his adult life in
prison; his failure to successfully complete terms of probation and parole; and



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his use of weapons in committing his prior crimes. These factors, along with
the 18 U.S.C. § 3553(a) sentencing factors, support the court’s conclusion that
Scott’s advisory Guidelines sentencing range did not adequately represent his
pattern of criminal conduct and the great likelihood of recidivism. U.S.S.G.
§ 4A1.3(a); Zuniga-Peralta, 442 F.3d at 347.
      Because Scott did not object in district court to the extent of the
departure, his challenge to the extent is reviewed only for plain error. E.g.,
United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). (In his reply
brief, Scott challenges this court’s requiring an objection to the reasonableness
of a sentence be made after the sentence is imposed.           Recognizing this
challenge is foreclosed, he presents the issue to preserve it for possible further
review.)
      For such plain-error review, Scott must show a forfeited plain error (clear
or obvious error, rather than one subject to reasonable dispute) that affected
his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes that showing, we have the discretion to correct such reversible plain
error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id. For the reasons that
follow, the court did not commit plain error.
      As discussed supra, the court properly concluded that Scott’s extensive
and continuous criminal activity and use of weapons in committing crimes over
a 20-year period increased the likelihood he would continue to engage in
dangerous criminal activity. Zuniga-Peralta, 442 F.3d at 347. The above
reasoning applies equally to the extent of the departure. Id. Along that line,
this court must extend deference to the court’s ruling the 18 U.S.C. § 3553(a)
factors warranted the departure, even if this court would have imposed a
different sentence. Gall, 552 U.S. at 51. Further, this court has affirmed



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departures considerably larger than the 29-month departure in this instance.
E.g., United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005) (79-month
departure); United States v. Daughenbaugh, 49 F.3d 171, 174–75 (5th Cir.
1995) (169-month departure).
     AFFIRMED.




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