     Case: 11-50110     Document: 00511759878         Page: 1     Date Filed: 02/15/2012




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

                                                                            FILED
                                                                         February 15, 2012
                                     No. 11-50110
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GREGORY EUGENE NEAL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CR-511-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Gregory Eugene Neal appeals the 60-month prison sentence imposed on
his guilty plea conviction for possessing with intent to distribute five grams or
more of crack cocaine. See 21 U.S.C. § 841(a)(1). This sentence was above the
Sentencing Guidelines’ range of 30 to 37 months but became the guidelines
sentence because it was the statutory mandatory minimum in effect at the time
of the offense. § 841(b)(1)(B); U.S.S.G. § 5G1.1(b). We affirm, and we deny
Neal’s motion for remand.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50110    Document: 00511759878       Page: 2    Date Filed: 02/15/2012

                                   No. 11-50110

      The district court rejected Neal’s claim that the Fair Sentencing Act of
2010 (FSA), see Pub. L. No. 111-220, 124 Stat. 2372, governed his sentence,
finding the FSA inapplicable because Neal committed his offense before the FSA
was enacted. Additionally, the court determined that a 60-month sentence was
reasonable in light of the factors in 18 U.S.C. § 3553(a).
      Neal committed his offense on May 7, 2010, and was sentenced on January
21, 2011. The FSA, which became effective in August 2010, amended the
Controlled Substances Act and Controlled Substances Import and Export Act by
resetting the drug quantities required to trigger mandatory minimum sentences.
Pub. L. No. 111-220, § 2(a)(2), 124 Stat. 2372 (Aug. 3, 2010). The FSA amended
§ 841(b)(1)(B) by increasing from 5 grams to 28 grams the amount of crack
cocaine a defendant must possess before he is subject to a five-year mandatory
minimum sentence. See Pub. L. No. 111-220, § 2(a)(2). In United States v.
Tickles, 661 F.3d 212, 214-15 (5th Cir. 2011), petition for cert. filed (Dec. 5, 2011)
(11-8023) and petition for cert. filed (Dec. 27, 2011) (11-8268), decided while
Neal’s appeal was pending, we held that the penalties prescribed by the FSA do
not apply to federal criminal sentencing for illegal conduct that preceded the
FSA’s enactment. Our precedent thus forecloses Neal’s retroactivity claim.
      As already noted, the district court selected Neal’s sentence on the
separate, alternative basis that it was warranted and reasonable under
§ 3553(a). We ordinarily review sentences for reasonableness in light of the
sentencing factors of § 3553(a), employing an abuse of discretion standard. Gall
v. United States, 552 U.S. 38, 46, 49-51 (2007). That standard applies “whether
the sentence imposed is inside or outside the Guidelines range.” Id. at 51.
Neal’s sentence—which is outside the applicable guidelines range and not based
on an allowed departure—constitutes a non-Guidelines sentence under our
precedent. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).




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                                  No. 11-50110

      Although Neal refers to the § 3553(a) factors, he does not contend that the
district court failed to consider them; instead, he disagrees with the court’s
weighing of them.        Neal’s objection, therefore, is to the substantive
reasonableness of the sentence.      It is questionable, however, whether he
preserved that objection for full appellate review. See United States v. Krout,
66 F.3d 1420, 1434 (5th Cir. 1995). We pretermit the issue of what review
standard applies to Neal’s claim of unreasonableness, however, given that Neal
cannot prevail on a claim of unreasonableness under any standard. See United
States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      As a substantive matter, a sentence need only be supported by the factors
recited in § 3553(a). United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
“A [variance] sentence unreasonably fails to reflect the [§ 3553(a)] 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 in balancing the sentencing factors.” Id. at 708. As
the record shows, the court explicitly relied on § 3553(a) in imposing the upward
variance. The court noted Neal’s recidivism, specially remarking on the need to
address the fact that Neal simply persisted in criminal conduct despite his
previous incarceration in the state penitentiary. Because the district court’s
concerns were validly based on the § 3553(a) factors, the sentence imposed “was
reasonable under the totality of the relevant statutory factors.” Brantley,
537 F.3d at 349. Moreover, even if we were to agree with Neal that a guidelines
sentence would have been reasonable, that is “insufficient [reason] to justify
reversal of the district court[’s]” determination “that the § 3553(a) factors, on a
whole, justif[ied] the extent of the variance” sentence imposed. Gall, 552 U.S.
at 51. Accordingly, we agree also with the district court’s alternative reason for
imposing the sentence it did. See United States v. Ho, 311 F.3d 589, 602 n.12
(5th Cir. 2002); United States v. Bueno, 585 F.3d 847, 850 n.3 (5th Cir. 2009).
      AFFIRMED; MOTION FOR REMAND DENIED.

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