     Case: 09-10786     Document: 00511151937          Page: 1    Date Filed: 06/23/2010




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

                                                 FILED
                                                                            June 23, 2010
                                     No. 09-10786
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

LOYD D. WILLIAMS, JR.,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:08-CR-157-1


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Loyd D. Williams, Jr., challenges his within-Guidelines sentence of 18
months’ imprisonment, imposed following his guilty-plea conviction of theft of
government funds (Social Security disability payments), in violation of 18 U.S.C.
§ 641. Williams contends: the district court committed procedural error at
sentencing by referencing the appellate reasonableness standard and by noting



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10786    Document: 00511151937 Page: 2         Date Filed: 06/23/2010
                                 No. 09-10786

that the Guidelines stand as a rough approximation of the sentencing factors in
18 U.S.C. § 3553(a); and, his sentence is not entitled to the presumption of
reasonableness granted within-Guidelines sentences.
      Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the guideline-sentencing range for
use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, its application of the Guidelines is reviewed de novo; its
factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005).
      As noted, pursuant to Gall, we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court
committed a significant procedural error. Id. at 752-53. If there is no such error,
we then review the substantive reasonableness of the sentence imposed, as noted
above, for an abuse of discretion. Id. at 751-53. “[A] sentence within a properly
calculated Guideline range is presumptively reasonable”.          United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Because Williams did not object on the grounds presented here, review is
only for plain error. United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009). To establish reversible plain error,
Williams must show the district court committed a clear or obvious error that
affected his substantial rights; even then, we have discretion whether to correct
such error and, generally, will do so only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. E.g., Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009); United States v. Baker, 538 F.3d 324, 332
(5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). For the reasons that follow,
there was no error, plain or otherwise.

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                                 No. 09-10786

      Williams first contends that the district court erred by referring to a
“reasonable sentence”. This, he claims, shows the court impermissibly relied on
an appellate standard when fashioning his sentence. Likewise, he claims the
court’s observation that the Guidelines “represent a rough approximation of a
sentence that might achieve the objectives of § 3553(a)” also shows the court
relied on an appellate standard.
      The sentencing record shows that the district court relied on the proper
standard and engaged in a thorough analysis of the § 3553(a) sentencing factors.
Williams fails to cite any controlling authority supporting his contention that a
district court’s acknowledgment of appellate considerations is erroneous.
      Williams next challenges the presumption of reasonableness given his
within-Guidelines sentence. “The presumption is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (citing United States v.
Nikonova, 480 F.3d 371, 376 (5th Cir. 2007)), cert. denied, 130 S. Ct. 1930 (2010).
Williams contends the district court both considered an irrelevant factor and
failed to give sufficient weight to another when it ruled that Williams’ medical
condition did not mitigate the severity of his offense.
      Williams sought leniency at sentencing by asserting he only began
committing the offense after he realized his disability benefits would not cover
the cost of his medical care. The court questioned and rejected that logic, noting
Williams knew about his medical condition (and presumably its costs) before he
applied for the benefits. The court also emphasized that “[t]here are a number
of people who are similarly situated and they do not resort to crime to take care
of their health conditions”. Williams has not overcome the presumption of
reasonableness. See id.



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                                 No. 09-10786

      Williams similarly contends the district court both placed weight on an
irrelevant factor and ignored a relevant sentencing factor when it emphasized
his older convictions, instead of his crime-free 32 months between his arrest and
sentencing hearing. The court, however, explained why it believed Williams’
criminal record was predictive of future criminal conduct. It emphasized his
long history of similar acts of “theft, dishonesty, or false statement”. It also
found his behavior was the opposite of what should be expected of someone his
age. It noted: despite studies showing criminal behavior should decline after a
person reaches age 50, Williams continued to break the law after reaching that
age, even while on probation. In the light of Williams’ criminal record, his
flaunting of parole, and his lack of rehabilitation with age, the district court’s
decision to give little weight to the 32 months between his arrest and sentencing
does not overcome the presumption of reasonableness. See id.; Alonzo, 435 F.3d
at 554.
      AFFIRMED.




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