     Case: 12-60976       Document: 00512300301         Page: 1     Date Filed: 07/09/2013




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

                                                                            FILED
                                                                            July 9, 2013
                                     No. 12-60976
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DON EARL JOHNSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:12-CR-39-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Don Earl Johnson appeals the 72-month sentence imposed following his
guilty plea to failing to register as a sex offender. He argues that the imposition
of an upward variance, and the extent of that variance, is substantively
unreasonable. We review the substantive reasonableness of the district court’s
above-guidelines sentence for an abuse of discretion. United States v. Brantley,
537 F.3d 347, 349 (5th Cir. 2008).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-60976    Document: 00512300301     Page: 2   Date Filed: 07/09/2013

                                 No. 12-60976

      A sentencing court may consider a defendant’s criminal history in
imposing a non-guidelines sentence, and it is permissible for the sentencing
court to evaluate the history and characteristics of the defendant and the nature
and circumstances of the offense to determine whether it would deviate from the
advisory range to afford adequate deterrence to criminal conduct. United States
v. Fraga, 704 F.3d 432, 440-41 (5th Cir. 2013). Johnson’s criminal history
category underrepresented both the seriousness of his criminal history and the
likelihood that he would reoffend where several of his assaults were not
prosecuted and 14 of his prior convictions received no criminal history points.
The district court thus did not abuse its discretion in imposing an upward
variance from the advisory guidelines range. See id. at 441.
      Regarding the extent of the upward variance, Johnson’s criminal conduct
was “significantly beyond that which had already been taken into account in
calculating the applicable Guidelines range.” Cf. United States v. Rajwani, 476
F.3d 243, 251 (5th Cir.), modified by, 479 F.3d 904 (5th Cir. 2007). Given the
comparatively little amount of time he spent incarcerated, the extent of the
variance also was not an abuse of discretion.
      AFFIRMED.




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