     Case: 09-30767     Document: 00511137259          Page: 1    Date Filed: 06/09/2010




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

                                                  FILED
                                                                            June 9, 2010
                                     No. 09-30767
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GARRETT M. RUSHING,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:08-CR-95-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Garrett M. Rushing pleaded guilty to possession with intent to distribute
methamphetamine and use of a firearm during a drug trafficking crime,
pursuant to 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1)(A). The guidelines
sentencing range was 92 to 115 months for the methamphetamine offense and
60 months for the firearm offense. The district court determined that an upward
variance from the guidelines range was appropriate and imposed consecutive
sentences of 135 and 72 months, respectively.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30767

      Rushing challenges the district court’s reasons for the sentences as
insufficient. Because he did not object on this basis in the district court, we
review the issue for plain error. See United States v. Whitelaw, 580 F.3d 256,
258, 261-62 (5th Cir. 2009). Rushing confuses the upward variance imposed by
the district court with an upward departure under U.S.S.G. § 4A1.3. He asserts
that the district court’s explanation was insufficient because it did not show that
the court applied the procedure required by § 4A1.3(a)(4)(B) and because the
court relied on his arrest record in violation of § 4A1.3(a)(3). We distinguish
between an upward departure allowed under the guidelines and a non-guidelines
sentence, or variance, that is outside of the guidelines range. United States v.
Brantley, 537 F.3d 347, 349 (5th Cir. 2008). The district court stated that it was
imposing an upward variance. As such, it was permitted to rely on Rushing’s
arrest record, supported by additional evidence of criminal conduct (including
Rushing's “six or seven” convictions as well as the violent and drug-related
nature of the charges underlying his prior arrests), in imposing the above-
guidelines sentence. See United States v. Lopez-Velasquez, 526 F.3d 804, 807
(5th Cir.), cert. denied, 129 S. Ct. 625 (2008). The provisions of § 4A1.3 did not
apply, and the district court did not err by failing to show that it complied with
those provisions.   See United States v. Smith, 440 F.3d 704, 706–08 (5th
Cir. 2006).
      Next Rushing contends that the district court erred by relying on elements
of the offense to impose the above-guidelines sentence. The appellant’s brief
must contain his “contentions and the reasons for them, with citations to the
authorities and parts of the record on which [he] relies.”          F ED. R. A PP.
P. 28(a)(9)(A). Rushing abandons this argument by failing to offer any legal
support for it. See id.; United States v. Stalnaker, 571 F.3d 428, 439–40 (5th Cir.
2009).
      Rushing also asserts that the district court’s reasons were not factually
specific or detailed enough to allow review by this court. The district court

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                                 No. 09-30767

provided a lengthy explanation for the upward variance that included fact-
specific reasons such as Rushing’s “six or seven” prior convictions, 25 arrests,
history of narcotics distribution and physical violence, and the violence involved
in the instant offense. It cited aggravating circumstances not accounted for by
the guidelines, including a separate robbery committed by Rushing on the night
of the instant offenses, his possession of firearms as a convicted felon, his fleeing
to Wyoming after the instant offenses, and his failure to provide officials with
the source of methamphetamine he purchased. The district court referenced the
sentencing factors under § 3553(a) and explained that the variance was
necessary to protect society and deter future crimes. The court acknowledged
Rushing’s argument that his troubled background was a mitigating factor but
rejected it because Rushing had “ample opportunities” as an adult to change but
failed to do so. Accordingly, we find no error, plain or otherwise, with the
reasons provided by the district court. See Smith, 440 F.3d at 708; United States
v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
      We do not consider Rushing’s remaining argument that the consecutive
sentences imposed by the district court were disproportionate to his offenses and
unsupported by the record. Although Rushing states that this court should use
the sentencing factors under 18 U.S.C. § 3553(a) as a guide in reviewing the
reasonableness of his sentences, he does not explain why the sentences were
excessive under those factors, dispute the factors relied on by the district court,
or cite to the record. By failing to brief the issue sufficiently, he waives it. See
F ED. R. A PP. P. 28(a)(9)(A); Stalnaker, 571 F.3d at 439–40.
      AFFIRMED.




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