     Case: 10-10407 Document: 00511287911 Page: 1 Date Filed: 11/08/2010




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

                                                 FILED
                                                                          November 8, 2010
                                     No. 10-10407
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

GLORIA JEAN SIMMONS, also known as Gloria Norris Simmons,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 5:09-CR-81-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Gloria Jean Simmons appeals the 36-month sentence imposed following
her guilty plea conviction for possession of stolen mail matter and aiding and
abetting. Simmons specifically argues for the first time on appeal that the
district court erred procedurally by making an upward variance at sentencing
because it failed to address her nonfrivolous arguments for imposing a lesser
sentence and failed to give an adequate explanation for the variance. She



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10407

contends that the district court’s mere reference to the 18 U.S.C. § 3553(a)
factors was insufficient.
         Simmons did not raise these specific procedural objections in the district
court;    therefore,   review   is   for   plain   error.   See   United   States   v.
Mondragon-Santiago, 564 F.3d 357, 361-62 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). The record reflects that the district court heard the arguments of defense
counsel that Simmons should receive a guidelines range sentence in light of her
drug rehabilitation efforts and her financial difficulties. The district court’s
comments about Simmons’s recidivism and the fact that it varied upward
constituted an implicit rejection of her arguments for a more lenient sentence.
See Rita v. United States, 551 U.S. 338, 359 (2007). The district court expressly
considered the relevant § 3553(a) policy factors and gave adequate reasons for
the imposition of the 36-month sentence. See United States v. Herrera-Garduno,
519 F.3d 526, 531-32 (5th Cir. 2008). The district court’s procedural ruling was
not erroneous and did not affect Simmons’s substantial rights. Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009).
         Simmons argues that her sentence was substantively unreasonable
because the district court did not take into account her drug rehabilitation or
motive for stealing, it overemphasized her single prior conviction, and it failed
to consider the relatively minor nature of her offense. She contends that the
extent of the variance was not justified and was substantively unreasonable.
         In reviewing a non-guidelines sentence for substantive unreasonableness,
this court will consider the totality of the circumstances, including the extent of
any variance from the guidelines range. United States v. Brantley, 537 F.3d 347,
349 (5th Cir. 2008). This court also reviews whether the § 3553(a) factors
support the sentence and gives deference to the district court’s determination
that the § 3553(a) factors justify the variance. Id.
         The district court’s explanation at sentencing and its written statement
of reasons reflect that it based its sentencing determination on the § 3553(a)

                                            2
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                                No. 10-10407

factors, including the nature and circumstances of the offense of conviction,
Simmons’s history and characteristics, the need to provide just punishment, and
the need to deter Simmons from further criminal conduct. Simmons’s recidivism
was an important and relevant factor entitled to significant weight. See United
States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007).      The totality of the
circumstances surrounding Simmons’s offense justified the extent of the
variance.
      Given the significant deference that is owed to a district court’s
consideration of the § 3553(a) factors and the district court’s reasons for its
sentencing decision, Simmons has not shown that her sentence was
substantively unreasonable. See Brantley, 537 F.3d at 349.
      The sentence is AFFIRMED.




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