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

                                                                            FILED
                                                                         January 12, 2009
                                     No. 07-31063
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

ANDREW SMITH, JR

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 2:06-CR-20132-1


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Andrew Smith, Jr., appeals the 15-year sentence imposed after he pled
guilty to discharging a firearm during a drug-trafficking crime. See 18 U.S.C.
§ 924(c)(1)(A)(iii). For the following reasons, we AFFIRM the judgment of the
district court.
       Smith fled from a sheriff’s deputy and a foot chase ensued. As the deputy
closed in, Smith pulled a firearm and fired it, hitting no one. Smith was
captured and found to be carrying crack cocaine. Pursuant to a written plea

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-31063

agreement, Smith pled guilty to carrying and discharging a firearm during a
drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(iii); other related
charges were dismissed. The presentence report (“PSR”) correctly stated that
the advisory Guideline sentence was the 10-year statutory minimum sentence
contained in § 924(c)(1)(A)(iii), see U.S.S.G. § 2K2.4, but indicated that an
upward departure might be warranted. The district court conducted a three-
stage sentencing hearing, focusing primarily on the circumstances of the gun’s
discharge. The court determined that Smith’s original story that the gun
accidently fired in his pocket was contrary to the evidence and that Smith had
intentionally fired the weapon. The court then imposed a 15-year sentence.1
Smith appeals.
       We review sentences for reasonableness in light of 18 U.S.C. § 3553(a).
United States v. Sanchez-Ramirez, 497 F.3d 531, 534 (5th Cir. 2007).                         A
reviewing court must first ensure that the sentence is not unreasonable due to
a procedural error “such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence-including an explanation for any
deviation from the Guidelines range.” Gall v. United States, 128 S. Ct. 586, 597
(2007). If the reviewing court deems the district court’s sentencing decision to
be procedurally reasonable, the court should then consider whether the sentence
is substantively reasonable under “the totality of the circumstances, including
the extent of any variance from the Guidelines range.” Id. When a sentence is

       1
         It is unclear whether the district court intended the five-year increase to be a
Guidelines-based upward “departure” or a non-guideline upward “variance.” However, the
characterization is irrelevant in this case because “the sentence imposed was reasonable ‘under
the totality of the relevant statutory factors.’” United States v. Brantley, 537 F.3d 347, 349
(5th Cir. 2008) (quoting United States v. Jones, 444 F.3d 430, 441 (5th Cir. 2006)). Further,
if the sentence was a departure, sufficient notice of a possible departure was supplied by the
PSR and the government’s response, which indicated that the physical evidence contradicted
Smith’s claim of accidental discharge. See United States v. Singleton, 49 F.3d 129, 135 (5th
Cir. 1995).

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outside the Guidelines range, the reviewing court “must give due deference to
the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” Id. The Supreme Court has rejected “an appellate rule
that requires ‘extraordinary’ circumstances to justify a sentence outside the
Guidelines range” as well as “the use of a rigid mathematical formula that uses
the percentage of a departure as the standard for determining the strength of
the justifications required for a specific sentence.” Id. at 595.
      Smith initially raises several procedural challenges to his sentence.
Because he failed to object at sentencing, these challenges are reviewed for plain
error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007) cert.
denied, 128 S. Ct. 2959 (2008). To prevail on plain-error review, a defendant
must show a clear or obvious error that affected his substantial rights. United
States v. Olano, 507 U.S. 725, 732-35 (1993). If the defendant does so, we have
discretion to correct the forfeited error if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. at 736.
      Smith first contends that the district court failed to set forth adequate
reasons for his sentence. In explaining a chosen sentence, “[t]he sentencing
judge should set forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.” United States v. Rita, 127 S. Ct. 2456,
2469 (2007). Where the record indicates that the court has considered the
evidence and arguments, a short statement may be sufficient.              See id. at
2468–69. Here, the district court held a three-stage hearing to determine
whether Smith intentionally fired the weapon and thereby purposefully
endangered the deputy. At the conclusion, the court explained that it had
considered the § 3553(a) factors and decided to impose 15 years because “Smith
used a firearm while committing or attempting to commit an offense which has
as an element the attempted use or threatened use of physical force against the
person or property of another.” Viewed in context of the sentencing proceedings,

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this statement clearly implicates the danger to the deputy created by Smith's
intentional drawing and discharging of the firearm. Moreover, the court had
previously stated that it (1) accepted expert testimony that the gun did not
accidently discharge in Smith’s pocket as Smith initially claimed; (2) found
Smith’s actions to be “extremely dangerous”; and (3) believed that Smith failed
to adequately take responsibility for the danger to the deputy. Thus, viewing the
proceedings as a whole, it is clear that the district court imposed the 15-year
sentence based on the intentionally created danger to the deputy and Smith’s
failure to accept responsibility. No further explanation is necessary. See Rita,
127 S. Ct. at 2468–69.
      Second, Smith contends that court improperly relied on the inherent
danger of using a firearm as a factor in enhancing his sentence. He argues that
any such danger was previously taken into account in formulating the 10-year
Guidelines sentence. It is clear that the district court relied on more than just
the inherent danger of a firearm in selecting a sentence. Moreover, the district
court was not precluded from imposing a non-Guidelines sentence based on a
factor that the Guidelines had already taken it into account. See United States
v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008).
      Third, Smith asserts that the district court did not find facts to justify a
departure under U.S.S.G. § 5K2.21. Section 5K2.21 provides for an upward
departure “to reflect the actual seriousness of the offense based on [uncharged]
conduct.” § 5K2.21; United States v. Newsome, 508 F.3d 731, 734 (5th Cir. 2007).
There is no indication that the court attempted to justify a departure under
§ 5K2.21, and thus Smith has shown no error.
      Smith also raises several challenges to the substantive reasonableness of
his sentence. He contends that the sentence was “unjustified” because there was
no compelling reason for the upward departure. However, the record supports
the district court’s implicit conclusion that Smith intentionally fired the gun as
the deputy approached. The increased danger to the deputy presented by the

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gun’s intentional discharge concerns “the nature and the circumstances of the
offense” under § 3553(a)(1) and the “seriousness of the offense” under §
3553(a)(2)(A).   See Sanchez-Ramirez, 497 F.3d at 535 (upholding above-
Guidelines sentence where the conduct was “more egregious than the normal
alien-smuggling case” on account of the grave danger posed to the smuggled
aliens). Furthermore, it is clear that Smith presented several different versions
of the offense and failed to take full responsibility for the danger.
      Finally, Smith contends that the degree of the departure or variance was
excessive. Smith’s contention that he would have received a lesser sentence had
he gone to trial and been convicted on all counts is purely speculative. There is
no indication in the record that, after a trial, the district court would not have
increased the sentence based on danger to the deputy. Further, the statutory
minimum of 10 years would have been imposed in addition to any punishment
for the associated drug crime. See § 924(c)(1)(A). Finally, this court has upheld
departures or variances similar to or greater than the 50% increase in Smith’s
sentence. See, e.g., Brantley, 537 F.3d at 348-50 (variance from guideline
maximum of 51 months to sentence of 180 months); Williams, 517 F.3d at 811
(variance from guideline maximum of 121 months to sentence of 172 months);
Herrera-Garduno, 519 F.3d at 530 (departure or variance to 60 months, up from
guideline maximum of 27 months). Smith has not shown that his sentence was
unreasonable.
      The judgment of the district court is AFFIRMED.




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