     Case: 09-50421     Document: 00511056188          Page: 1    Date Filed: 03/18/2010




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

                                                  FILED
                                                                           March 18, 2010
                                     No. 09-50421
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TRENT THOMAS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:08-CR-453-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Trent Thomas appeals from the 90-month sentence imposed by the district
court for his conviction of possession of a firearm as a felon. This sentence was
12-months above the guidelines range of 63-78 months of imprisonment. We
need not address Thomas’s arguments that an upward departure pursuant to
U.S.S.G. § 4A1.3 was not appropriate because the sentence may be affirmed on
the district court’s alternate basis for the sentence as an upward variance
justified by the 18 U.S.C. § 3553(a) factors. See United States v. Bonilla, 524

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50421   Document: 00511056188 Page: 2         Date Filed: 03/18/2010
                                No. 09-50421

F.3d 647, 656-59 (5th Cir. 2008)(affirming a non-guidelines alternative sentence
despite that the district court had erroneously calculated the applicable
guidelines range), cert. denied, 129 S. Ct. 904 (2009).
        Thomas argues that the above-guidelines sentence was procedurally
unreasonable because the district court did not explain why it rejected his
arguments that a lower sentence was warranted given that (1) most of his prior
convictions were for misdemeanor offenses, (2) his past criminal activities were
non-violent and were caused by his drug addiction, and (3) he had strong family
ties.   However, the district court was not required to engage in “robotic
incantations that each statutory factor has been considered.” Smith, 440 F.3d
at 707 (5th Cir. 2006) (internal quotation marks and citation omitted). Rather,
after listening to Thomas and his attorney’s arguments as well as those of the
Government, the district court explained that Thomas’s extensive criminal
history and his history of recidivism warranted a sentence above the guidelines.
Thomas fails to show either that the district court failed to give adequate
consideration to the § 3553(a) sentencing factors or failed to offer an adequate
explanation for the sentence imposed. See Gall v. United States, 552 U.S. 38, 49-
50 (2007). Nor has he shown that the sentence imposed was substantively
unreasonable. See id. at 51; United States v. Brantley, 537 F.3d 347, 348-50 (5th
Cir. 2008)(affirming variance from the guideline maximum of 51 months to a
sentence of 180 months); United States v. Herrera-Garduno, 519 F.3d 526, 530-
32 (5th Cir. 2008) (affirming variance from the guideline maximum of 27 months
to a sentence of 60 months); Smith, 440 F.3d at 708-10 (same).
        AFFIRMED.




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