     Case: 16-30350      Document: 00513786009         Page: 1    Date Filed: 12/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                    No. 16-30350                                     FILED
                                  Summary Calendar                           December 6, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

AUGUST J. PHELPS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:15-CR-4-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant August J. Phelps appeals the 16-month above-
guidelines sentence imposed in connection with his conviction for obstruction
of correspondence. Phelps contends that the district court erred in denying a
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. He also
argues that his sentence is substantively unreasonable as an upward
departure or an upward variance because the district court gave too much


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-30350    Document: 00513786009     Page: 2   Date Filed: 12/06/2016


                                 No. 16-30350

weight to stale misdemeanor convictions.        Though Phelps pleaded guilty
pursuant to a plea agreement containing a waiver of appeal, the government
does not seek enforcement of the appeal waiver. Thus, the waiver is not
binding, and Phelps is not prevented from bringing this appeal. See United
States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
      Section 3E1.1(a) of the Sentencing Guidelines directs the sentencing
court to reduce a defendant’s offense level “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense.”          § 3E1.1(a).
However, if a defendant fails to withdraw from criminal conduct or
associations, the court may deny a reduction for acceptance of responsibility.
§ 3E1.1, comment. (n.1(b)); United States v. Puckett, 505 F.3d 377, 387 (5th Cir.
2007).
      The presentence report recommended against a reduction under § 3E1.1
based on information that Phelps violated the conditions of his pretrial
supervision by receiving a misdemeanor summons for theft, failing to notify
pretrial services of his contact with law enforcement, and failing to participate
in substance abuse treatment.      Additionally, Phelps made no attempt to
communicate with his pretrial services officer, and when the officer was finally
able to speak with Phelps, Phelps admitted that he had relapsed on illegal
narcotics. Phelps made no argument and presented no evidence to dispute
these allegations. Because the record supported the conclusion that Phelps
had not withdrawn from criminal conduct, the district court’s denial of a
reduction for acceptance of responsibility was not without foundation. See
United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008).
      We review Phelps’s challenge to the substantive reasonableness of a
sentence for abuse of discretion. United States v. Robinson, 741 F.3d 588, 598
(5th Cir. 2015). Phelps fails to show that the above-guidelines sentence is



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                                  No. 16-30350

unreasonable, either as a departure under U.S.S.G. § 4A1.3 or as a variance
outside the guidelines system under 18 U.S.C. § 3553(a). See United States v.
Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008).        When imposing Phelps’s
sentence, the district court assessed the facts and provided specific reasons
consistent with the § 3553(a) factors to support its determination that a
sentence outside of the guidelines range was necessary to achieve the goals of
sentencing. The district court noted that only one of Phelps’s prior convictions
was counted in calculating his criminal history category. Further, Phelps had
four bench warrants at the time of his arrest.        Under the totality of the
circumstances, including the significant deference that is given to the district
court’s consideration of the § 3553(a) factors and the district court’s reasons for
its sentencing decision, Phelps fails to show that the district court erred in
imposing his 16-month above-guidelines sentence.            See United States v.
Gerezano-Rosales, 692 F.3d 393, 400-01 (5th Cir. 2012).
      The judgment of the district court is AFFIRMED.




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