     Case: 11-30148     Document: 00511645513         Page: 1     Date Filed: 10/26/2011




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

                                                                            FILED
                                                                         October 26, 2011
                                     No. 11-30148
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANTHONY J. THOMAS, also known as Anthony Thomas, Jr.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-236-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Anthony J. Thomas appeals the 87-month above-guidelines sentence he
received after pleading guilty to possession of a firearm by a convicted felon.
According to Thomas, the district court committed procedural error by imposing
the sentence without addressing his mitigation arguments in a meaningful
manner and by failing to provide a detailed statement of reasons. He also
argues that his sentence is substantively unreasonable.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30148

      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). See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Pursuant to Gall v. United States, 552 U.S. 38, 49-51 (2007), this court must first
determine whether the sentence imposed is procedurally sound. See United
States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). As Thomas
concedes, because he raised the procedural error issue for the first time on
appeal, we review for plain error only. See United States v. Whitelaw, 580 F.3d
256, 259 (5th Cir. 2009).
      Despite Thomas’s assertions otherwise, the record reveals that the district
court considered his mitigation arguments. At sentencing, the district court
stated that it had read Thomas’s sentencing memorandum, which included
Thomas’s argument that a sentencing departure was not warranted due to his
troubled childhood and adolescence, his father’s drug addiction, losing close
friends and family members to violence involving firearms, and suffering
lingering health problems from gunshot wounds. In addition, the district court
allowed Thomas to speak and engaged Thomas in conversation about the issues.
Thomas’s mitigation arguments were mentioned in the presentence report
(PSR), which the district court considered in its entirety. The district court’s
decision to impose an upward departure despite express knowledge of the issues
affecting Thomas constitutes an implicit rejection of Thomas’s mitigation
arguments. See Gall, 552 U.S. at 51; see also United States v. Herrera-Garduno,
519 F.3d 526, 530 (5th Cir. 2008) (finding no procedural error where the district
court, inter alia, allowed both parties to present arguments about the
appropriateness of their requested sentences).
      Moreover, the district court provided adequate and detailed reasons for
imposing an above-guidelines sentence. After reviewing Thomas’s continuous
and extensive criminal history, the district court noted that many of Thomas’s
offenses involved drugs and weapons as well as fleeing from or other dangerous

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interactions with law enforcement officials. The district court stated on the
record that it was imposing what it considered to be an appropriate sentence
based upon Thomas’s previous firearms-related offenses, the lack of deterrence
by lenient sentences, Thomas’s violent and “antisocial behavior,” the likelihood
of recidivism, Thomas’s prior unsuccessful supervision periods, and the need to
protect the public.     Additionally, the district court explained that it had
considered the entire PSR and listed specific § 3553(a) factors. As the record
demonstrates, the district court considered Thomas’s arguments and provided
an adequate explanation for imposing an above-Guidelines sentence; therefore,
Thomas has not shown procedural error, plain or otherwise. See Gall, 552 U.S.
at 51; Whitelaw, 580 F.3d at 262-63.
      Thomas’s assertion that his sentence is substantively unreasonable is
equally without merit. He argues that because the district court relied solely on
his criminal history and ignored his mitigating arguments, the departure from
the advisory guidelines imprisonment range of 46 to 57 months up to 87 months
was “considerable” and “”unreasonable.”          We consider “the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Gall, 552 U.S. at 51; see also United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      An upward departure may be warranted “if reliable information indicates
that the defendant’s criminal history category substantially under-represents
the seriousness of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). The record reveals
that the district court did not ignore Thomas’s mitigation arguments and did not
rely solely on Thomas’s criminal history to calculate an appropriate sentence,
but also considered the PSR and the § 3553(a) factors. The district court was in
the best position to evaluate Thomas’s history and characteristics as well as the
need for the sentence imposed to further the objectives set forth in § 3553(a), and



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the district court’s reasoned decision is entitled to deference. See Gall, 552 U.S.
at 51-52.
      Even taking into account Thomas’s mitigating issues, the 87-month
sentence imposed was not unreasonable, especially in light of Thomas’s young
age and extensive criminal history, his inability to successfully complete
probation or supervised release, and his repetitive engagement in dangerous and
violent interactions with law enforcement officials.       See United States v.
Gutierrez, 635 F.3d 148, 155 (5th Cir. 2011). Furthermore, the 30-month
difference between the 57-month top of the advisory guidelines range and the 87-
month sentence imposed is considerably less than other sentences that we have
affirmed. See id. at 155 n.34 (collecting cases); United States v. Smith, 440 F.3d
704, 708 n.5, 709-10 (5th Cir. 2006) (upholding as reasonable variance from
guidelines range maximum of 27 months to 60 months). We must give the
district court’s conclusion that the § 3553(a) factors justified the extent of the
deviation due deference, and it is immaterial that we “might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall, 552 U.S. at 51. Thomas has failed to
demonstrate that the district court abused its discretion. See id. Accordingly,
the judgment of the district court is AFFIRMED.




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