     Case: 14-50489      Document: 00513202856         Page: 1    Date Filed: 09/22/2015




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

                                                                                    FILED
                                                                              September 22, 2015
                                    No. 14-50489
                                  Summary Calendar                               Lyle W. Cayce
                                                                                      Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOHN DALE BERRY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:13-CR-555-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       John Dale Berry appeals the 60-month sentence imposed following his
guilty plea conviction for theft of government funds. He argues that this above-
guidelines sentence is substantively unreasonable because it is greater than
necessary to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a).
       In reviewing a non-guidelines sentence for substantive reasonableness,
we consider “the totality of the circumstances, including the extent of any


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50489    Document: 00513202856     Page: 2   Date Filed: 09/22/2015


                                 No. 14-50489

variance from the guidelines range, to determine whether as a matter of
substance, the sentencing factors in section 3553(a) support the sentence.”
United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (internal
quotation marks and citation omitted). A sentence is unreasonable if 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 relevant factors.” Id. at 401 (quoting
United States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012)). Where—as
here—the district court “properly calculated the applicable Guideline range
and carefully articulated permissible reasons for its variance,” its sentence
“must be given great deference.” United States v. Smith, 440 F.3d 704, 710
(5th Cir. 2006).
      The record establishes that the district court considered Berry’s
arguments for a lighter sentence but concluded that an above-guidelines
sentence was warranted under § 3553(a) to provide just punishment, promote
respect for the law, deter future thefts, and protect the public. The district
court justified its upward variance with factors including Berry’s prior theft
offenses, lack of remorse, and failure to reimburse prior victims, as well as the
thirty-year period over which he unlawfully collected his mother’s Social
Security benefits. Under the totality of the circumstances, Berry has not
shown that the district court imposed a substantively unreasonable sentence.
See id. at 707–10.
      The judgment of the district court is AFFIRMED.




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