     Case: 15-30875      Document: 00513580267         Page: 1    Date Filed: 07/06/2016




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

                                    No. 15-30875                              FILED
                                  Summary Calendar                         July 6, 2016
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LARRY D. BUTLER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CR-108-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Larry D. Butler appeals the sentence imposed following his guilty plea
conviction for two counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts
One and Two) and one count of false representation of a social security number
in violation of 42 U.S.C. § 408(a)(7)(B) (Count Three). He contends that the
district court abused its discretion in imposing an upward departure pursuant
to U.S.S.G. § 4A1.3(a)(1).       Specifically, Butler argues that the sentence is


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30875

substantively unreasonable because the district court failed to fully account for
mitigating factors in his personal history and characteristics and failed to
consider alternatives to incarceration such as house arrest or community
confinement.
      The record reflects that the district court explicitly considered the
breadth and nature of Butler’s criminal history, his father’s criminal influence,
his history of sexual abuse, his ability to overcome his addiction to crack
cocaine, his positive response to rehabilitative training, and his capacity to
recognize and overcome self-destructive behavior.           Moreover, the types of
sentences available were set forth in the presentence report, which the district
court considered and adopted at sentencing.          Notably, the district court
recommended that Butler be housed in a facility capable of providing substance
abuse and mental health treatment, and the court ordered that Butler
participate in such treatment as conditions of his supervised release. Because
the district court’s reasons for the departure advanced the objectives of 18
U.S.C. § 3553(a)(2) and were justified by the facts of the case, the district court
did not abuse its discretion in upwardly departing pursuant to § 4A1.3(a)(1).
See United States v. Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir. 2006).
      Finally, the extent of the departure was not excessive under the
circumstances. The 60-month sentence was nine months greater than the high
end of Butler’s 41 to 51-month guidelines range and did not exceed the 20-year
statutory maximum term of imprisonment on Counts One and Two or the five-
year statutory maximum term of imprisonment on Count Three. See § 1343;
§ 408(a)(7)(B). We have upheld similar and more substantial departures. See,
e.g., United States v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006) (affirming
an upward departure to 120 months from a guidelines imprisonment range of
46 to 57 months); Zuniga-Peralta, 442 F.3d at 346-48 (affirming an upward



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                                 No. 15-30875

departure from a guidelines imprisonment range of 27 to 33 months to a
sentence of 60 months). That we “might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal of the
district court.” Gall v. United States, 552 U.S. 38, 51 (2007). Accordingly, the
district court’s judgment is AFFIRMED.




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