     Case: 19-30849      Document: 00515494189         Page: 1    Date Filed: 07/17/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 19-30849                         United States Court of Appeals

                                  Summary Calendar
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 17, 2020

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

IVORY C. MYLES, also known as Ivory C. Miles,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:17-CR-241-1


Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Ivory C. Myles pleaded guilty to one count of interference with commerce
by robbery and one count of use of a firearm during a crime of violence. He
now appeals his 360-month, above-guidelines sentence. The district court
upwardly departed pursuant to U.S.S.G. § 4A1.3, after determining that
Myles’s criminal history category of VI substantially under-represented the
seriousness of his criminal history and the likelihood that he would reoffend.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30849

      On appeal, Myles argues that district court abused its discretion when
it imposed an upward departure under § 4A1.3. The brief is imprecise about
the exact nature of the challenge; however, the framework of his argument
suggests that he is arguing that the above-guidelines sentence is substantively
unreasonable. Here, the district court stated that departure was necessary to
afford adequate deterrence to criminal conduct and protect the public from
further crimes of the defendant. In light of Myles’s extensive criminal history,
which included numerous convictions that received no criminal history points,
the district court did not abuse its discretion by upwardly departing because
its reasons for doing so advance the objectives of 18 U.S.C. § 3553(a)(2) and are
justified by the facts of the case. See United States v. Zuniga-Peralta, 442 F.3d
345, 347-48 (5th Cir. 2006).
      Myles further argues that his sentence should be reversed, even if his
above-guidelines sentence is considered a variance. An upward variance is
substantively unreasonable if it fails to reflect the § 3553(a) sentencing factors
in that 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.”
United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). The district court
did not err by considering Myles’s criminal history in imposing an upward
variance. See id. at 708-09. Further, the district court reasonably could have
concluded that the facts of the instant offense warranted a variance, even if
some were taken into account by the guidelines range. See, e.g., United States
v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). Thus, Myles has not




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                               No. 19-30849

shown that the district court abused its discretion in imposing an upward
variance. See Smith, 440 F.3d at 708.
     Accordingly, the judgment is AFFIRMED.




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