     Case: 13-10251       Document: 00512441802         Page: 1     Date Filed: 11/14/2013




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

                                                                            FILED
                                                                        November 14, 2013
                                     No. 13-10251
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DANNY HARMES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:12-CR-41-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Danny Harmes appeals the 60-month sentence imposed following his
guilty plea conviction for making a false statement in acquisition of a firearm.
Following United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed
for reasonableness in light of the sentencing factors in 18 U.S.C. § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). We first consider
whether the district court made a significant procedural error. Gall v. United
States, 552 U.S. 38, 51 (2007). If there is no procedural error, we then review

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-10251

“the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id.
      Harmes contends that the district court’s upward variance from the
advisory guidelines range of 15 to 21 months was substantively unreasonable.
He asserts that the district court placed too much weight on his criminal history
and that it improperly reasoned that an above-guidelines sentence should be
imposed because he had received lenient sentences of probation on his three
convictions of injury to a child.
      When, as here, the district court has imposed a sentence that varies from
the guidelines range, reasonableness review requires us to evaluate whether the
sentence “unreasonably fails to reflect the statutory sentencing factors” set forth
at § 3553(a). United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). A
sentence that is an upward variance from the guidelines range is unreasonable
if the district court (1) did not account for a factor that should have received
significant weight, (2) gave significant weight to an irrelevant or improper factor,
or (3) made a clear error of judgment in balancing the sentencing factors. Id.
However, a sentence is not unreasonable merely because an appellate court
might have concluded that a different sentence would also have been
appropriate. Gall, 552 U.S. at 51; United States v. York, 600 F.3d 347, 361-62
(5th Cir. 2010). The sentencing court is in the best position to find facts and
judge their import. United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011).
      The record demonstrates that the district court appropriately relied on the
sentencing factors of § 3553(a) in determining that an above-guidelines sentence
was warranted, including such considerations as Harmes’s history and
characteristics, the need for the sentence to reflect the seriousness of the offense
and to promote respect for the law, the need to provide adequate deterrence to
further criminal conduct, and the need to protect the public from further crimes.
Harmes has not shown that the district court abused its discretion in varying
upwardly from the guidelines range. See Gall, 552 U.S. at 51.

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                                  No. 13-10251

      Harmes also contends that the extent of the upward variance was not
warranted merely because he had been leniently treated in a prior criminal case.
As discussed above, the district court thoroughly explained its sentence in terms
of the sentencing factors of § 3553(a). As an appellate court, we must “give due
deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” Id. Although the variance from the advisory
range is substantial, it is not unreasonable. See United States v. McElwee, 646
F.3d 328, 342, 344-45 (5th Cir. 2011); United States v. Brantley, 537 F.3d 347,
348-50 (5th Cir. 2008); United States v. Saldana, 427 F.3d 298, 315-16 (5th Cir.
2005).
      AFFIRMED.




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