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

                                                                 FILED
                                                                 June 4, 2008

                                 No. 05-30536               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellant
v.

RICHARD ROWAN, II

                                           Defendant-Appellee



                Appeal from the United States District Court
                   for the Western District of Louisiana


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, GARZA, and PRADO, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
      Plaintiff-Appellant (the “Government”) appeals the District Court decision
sentencing Defendant-Appellee Richard Rowan, II (“Rowan”) to a sixty-month
period of supervised release following his conviction for possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). We AFFIRM.
      Rowan pleaded guilty to the illegal possession of child pornography.
During sentencing, the District Court properly calculated his Guidelines range
as 46-57 months of imprisonment. Rather than sentencing Rowan to a term of
imprisonment within this range, or even to a modest period of incarceration, the
District Court sentenced him to a sixty-month period of supervised release. The
                                  No. 05-30536

Government timely appealed. We vacated and remanded for resentencing under
United States v. Duhon, 440 F.3d 711 (5th Cir. 2006) (vacating sentence of
supervised release for possession of child pornography), cert granted, judgment
vacated by 128 S. Ct. 853 (2008). Rowan petitioned for certiorari.
      Following our decisions in Duhon and Rowan, the Supreme Court issued
Gall v. United States, 128 S. Ct. 586 (2007) (clarifying appellate review of
District Court sentencing decisions). The Supreme Court granted Rowan’s
petition for certiorari, vacated our previous decision in Rowan, and remanded
the case for consideration under Gall. We now revisit this case in light of Gall.
      We review District Court sentencing decisions for abuse of discretion.
Gall, 128 S. Ct. at 597. Our review is bifurcated. Id. at 597-98; United States
v. Rodriguez, No. 07-10535, 2008 WL 853576, *4 (5th Cir. April 1, 2008). First,
we must determine whether the District Court committed any significant
procedural error. Gall, 128 S. Ct. at 597; Rodriguez, 2008 WL at * 4. The
District Court commits a procedural error if: it miscalculates or fails to calculate
the proper Guidelines range; it treats the Guidelines as mandatory; it imposes
a sentence based on clearly erroneous facts; it fails to consider the factors set
forth in 18 U.S.C. § 3553(a); or it fails adequately to explain its chosen sentence
or any deviation from the Guidelines range. See Gall, 128 S. Ct. at 597. Second,
if the District Court has committed no significant procedural error, we review
the sentence for substantive reasonableness. Id.
      Sentences fall into three categories: (1) those within a properly calculated
Guidelines range, (2) those outside a properly calculated Guidelines range that
are based on an allowed upward or downward departure, and (3) those outside
a properly calculated Guidelines range that are not based on an allowed
departure. United States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007). Rowan’s
sentence is outside the applicable Guidelines range and was not based on an



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allowed departure. See U.S.S.G. 5B1.1. Therefore, Rowan’s sentence is a non-
Guidelines sentence. See id.; Davis, 478 F.3d at 273.
      When the District Court imposes a non-Guideline sentence, we “may
consider the extent of the deviation, but must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 128 S. Ct. at 597. Even if we “might reasonably have concluded
that a different sentence was appropriate, [this] is insufficient to justify reversal
of the district court.” See id.
      We find no significant procedural error in the District Court’s sentencing
decision: the District Court properly calculated the Guideline range, heard
arguments concerning appropriate sentences, and meticulously considered the
§ 3553(a) factors. Based on the foregoing, the District Court concluded that a
non-Guidelines sentence of sixty months of supervised release was appropriate.
In light of the deferential standard set forth in Gall, 128 S. Ct. at 597-98, we
AFFIRM.




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