     Case: 17-10025      Document: 00514236674         Page: 1    Date Filed: 11/14/2017




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

                                    No. 17-10025                                   FILED
                                  Summary Calendar                         November 14, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CURTIS SEALY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-119-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Curtis Sealy appeals his non-guidelines sentence
of 80 months of imprisonment following his guilty plea conviction for being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and 18 U.S.C.
§ 924(a)(2). He contends that the district court’s upward variance from the
recommended guidelines range of 24 to 30 months to a sentence of 80 months
is substantively unreasonable. He asserts that his criminal history, which


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10025

consisted of relatively minor offenses, did not support a sentence that was 50
months above the top of the guidelines range. Sealy also asserts that the
district court failed to address his good behavior and rehabilitative efforts
while in prison.
      We review sentencing decisions for reasonableness, applying an abuse-
of-discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008).     In reviewing a non-guidelines sentence for substantive
reasonableness, we “consider the totality of the circumstances, including the
extent of any variance from the Guidelines range.” United States v. Key, 599
F.3d 469, 475 (5th Cir. 2010) (internal quotation marks and citation omitted).
We must also review whether the 18 U.S.C. § 3553(a) factors support the
sentence, “giv[ing] due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. (internal
quotation marks and citation omitted). A sentence unreasonably fails to reflect
the statutory sentencing factors set forth in § 3553(a) when 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 record shows that the district court considered Sealy’s contentions
regarding sentencing and that it imposed a sentence based on its application
of the § 3553(a) factors. We are satisfied that the district court did not abuse
its discretion in imposing an 80-month sentence. See Cisneros-Gutierrez, 517
F.3d at 764; Smith, 440 F.3d at 708. The court articulated the grounds under
§ 3553(a) that supported the upward variance. The extent of the variance from
the guidelines range is within the variances that we have upheld.            See
Cisneros-Gutierrez, 517 F.3d at 764; United States v. Brantley, 537 F.3d 347,



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                                No. 17-10025

348-50 (5th Cir. 2008); United States v. Smith, 417 F.3d 483, 492 (5th Cir.
2005).
      Sealy also argues that his conviction under § 922(g) is unconstitutional
because it regulates conduct that (1) falls outside of the Commerce Clause and
(2) the indictment should have been dismissed because it failed to allege that
he knew the firearm had traveled in interstate commerce. As Sealy concedes,
these arguments are foreclosed by United States v. Alcantar, 733 F.3d 143, 145-
46 (5th Cir. 2013) and United States v. Rose, 587 F.3d 695, 705-06 (5th Cir.
2009).
      The judgment of the district court is AFFIRMED.




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