     Case: 16-10024      Document: 00513689950         Page: 1    Date Filed: 09/23/2016




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

                                    No. 16-10024                             FILED
                                  Summary Calendar                   September 23, 2016
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARK ANTHONY LEWIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-116-1


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       Mark Anthony Lewis appeals his sentence following his conviction for
being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). He argues that his non-Guidelines sentence of 96 months of
imprisonment is substantively unreasonable. Our review is for an abuse of
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-10024    Document: 00513689950      Page: 2    Date Filed: 09/23/2016


                                 No. 16-10024

      In reviewing for reasonableness, we assess whether the statutory
sentencing factors set forth in 18 U.S.C. § 3553(a) support the sentence.
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). “A non-Guideline
sentence is unreasonable where 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.” Id. at 708 (internal quotation marks and citation omitted).
      The district court determined that in light of the nature and
circumstances of the offense and the history and characteristics of the
defendant, an above-Guidelines sentence was necessary in order to deter
future criminal conduct and to protect the public.         The court emphasized
Lewis’s criminal history, which it found to be underrepresented in light of his
uncharged criminal conduct, and his apparent failure to rehabilitate.            A
“defendant’s criminal history is one of the factors that a court may consider in
imposing a non-Guideline sentence.” Smith, 440 F.3d at 709. A defendant’s
rapid return to criminal conduct is also a factor that the court may consider,
as it relates to the history and characteristics of the defendant. See id.
      Further, the district court was not precluded from considering Lewis’s
uncharged conduct in assessing him a sentence above his guidelines range.
See, e.g., United States v. Newsom, 508 F.3d 731, 735 (5th Cir. 2007) (affirming
upward departure based on “criminal and dangerous uncharged conduct” not
accounted for in advisory guidelines range). In sum, Lewis has not shown any
abuse of discretion in the district court’s determination of his sentence. See,
e.g., United States v. Tzep-Meja, 461 F.3d 522, 528 (5th Cir. 2006) (finding no
error of judgment in district court’s balancing of the sentencing factors).
      AFFIRMED.




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