     Case: 13-10371      Document: 00512550716         Page: 1    Date Filed: 03/05/2014




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

                                                                                    FILED
                                    No. 13-10371                                March 5, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOHNNY CARL TINER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-239-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Johnny Carl Tiner appeals his 120-month sentence, which was above the
advisory guidelines range of imprisonment.              Tiner was convicted after he
pleaded guilty to being a felon in possession of a firearm. He argues that the
district court erred when it upwardly departed pursuant to U.S.S.G. § 4A1.3
because the prior convictions on which the district court based its above-




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10371

guidelines sentence were not similar to the instant conviction; nor were they
serious offenses.
      The record reflects, however, that the district court did not impose a
sentence based on an upward departure as allowed by the Sentencing
Guidelines but imposed a non-guidelines sentence, or variance, that was
outside the guidelines range. See United States v. Smith, 440 F.3d 704, 706-
07 (5th Cir. 2006). Thus, Tiner’s arguments about the district court’s failure
to comply with § 4A1.2 are inapposite. Moreover, Tiner has not adequately
briefed a challenge to the upward variance. Cf. Smith, 440 F.3d at 706-07; see
FED. R. APP. P. 28(a)(8). Therefore, whether the district court’s 120-month
upward variance sentence was reasonable is arguably not properly before us.
See United States v. Torres-Aguilar, 352 F.3d 934, 936 n.2 (5th Cir. 2003).
      Notwithstanding Tiner’s inadequate briefing, we defer to the district
court’s determination of the appropriate sentence based on the 18 U.S.C.
§ 3553(a) factors and find that the sentence imposed was procedurally sound
and substantively reasonable. See Gall v. United States, 552 U.S. 38, 48-51
(2007); United States v. McElwee, 646 F.3d 328, 337 (5th Cir. 2011); Smith, 440
F.3d at 707-10.
      The district court emphasized Tiner’s recidivism, noting that when he
was 18 years old he was given the benefit of the doubt and received deferred
adjudication, yet he continued to offend, and ultimately received sentences.
After serving a prison sentence, he was charged with more offenses for which
he received no criminal history points. The district court referenced § 3553(a)
and stated that in light of this history, it considered Tiner “a very dangerous
person” and found that a “significant sentence” was necessary to protect the
public.




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                                  No. 13-10371

      Thus, the district court made an individualized assessment and
concluded that the guidelines range gave insufficient weight to some of the
sentencing factors. See Smith, 440 F.3d at 708; § 3553(a). The district court’s
reasons for imposing a variance adequately reflect the § 3553(a) factors; the
court addressed the § 3553(a) factors and cited fact-specific reasons for
imposing a non-guidelines sentence. See United States v. Tzep-Mejia, 461 F.3d
522, 527 (5th Cir. 2006). In light of the district court’s explanations, the extent
of the variance was reasonable. See McElwee, 646 F.3d at 338; Smith, 440 F.3d
at 708.
      AFFIRMED.




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