     Case: 16-51301      Document: 00514170727         Page: 1    Date Filed: 09/26/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-51301                                  FILED
                                  Summary Calendar                        September 26, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DANIEL ISAIAH THODY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CR-153-1


Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM: *
       Daniel Isaiah Thody was convicted of five counts of tax evasion and
sentenced, on remand from this court, to serve a total of 90 months in prison
and three years on supervised release. Additionally, the district court ordered
that Thody pay restitution as a condition of supervised release. Now, he argues
that the district court acted vindictively by imposing a prison sentence that
was the result of an upward variance from the applicable guidelines range and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-51301

that the district court’s decision to impose a variance was not supported by
legitimate reasons.
      Sentences, whether inside or outside the advisory guidelines range, are
reviewed for reasonableness in light of the 18 U.S.C. § 3553(a) factors. Gall v.
United States, 552 U.S. 38, 51 (2007).       When analyzing the substantive
reasonableness of a sentence, this court considers “the totality of the
circumstances, including the extent of any variance from the Guidelines
range,” while affording “deference” to the district court’s choice of sentence and
keeping in mind that it may not vacate the sentence imposed simply because
it would have chosen a different one. United States v. Brantley, 537 F.3d 347,
349 (5th Cir. 2008) (internal quotation marks and citation omitted).
      If the challenged sentence deviates from the guidelines range, this court
must decide whether it “unreasonably fails to reflect the statutory sentencing
factors” set forth in § 3553(a). United States v. Smith, 440 F.3d 704, 708 (5th
Cir. 2006).   “A non-Guideline sentence unreasonably fails to reflect the
statutory sentencing factors where it (1) does not account for a factor that
should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in
balancing the sentencing factors.” Smith, 440 F.3d at 708.
      Thody has not met this standard. The district court’s oral and written
remarks show that it gave due consideration to the § 3553(a) factors and was
particularly concerned with the need for the sentence imposed to account for
the nature and circumstances of the offense as well as Thody’s characteristics,
which are proper sentencing factors. See § 3553(a)(1). The remarks also show
the district court’s concern with fashioning a sentence that would promote
respect for the law and deter further criminal conduct, which are proper
sentencing factors. See § 3553(a)(2)(A),(B). The record shows no error in



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                                  No. 16-51301

connection with the district court’s choice to impose an above-guidelines
sentence. See Smith, 440 F.3d at 708.
      Because Thody’s vindictiveness argument was not raised in the district
court, it is reviewed for plain error only. See United States v. Vontsteen, 950
F.2d 1086, 1092 (5th Cir. 1992) (en banc). To establish plain error, one must
show that the district court committed a clear or obvious error that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). Even if
he does so, this court will correct the error only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. Id.
      The necessary first requirement of a claim of vindictive sentencing is
that the second sentence be more severe than the first. Vontsteen, 950 F.2d at
1092. When, as is the case here, the defendant receives the same prison term
on resentencing as he did originally, there is no plain error. Vontsteen, 950
F.2d at 1092-93. Thody has shown no reversible error in connection with his
term of imprisonment.
      Next, Thody argues that the district court erred by ordering restitution
because it is not authorized under 18 U.S.C. § 3663.            This argument is
unavailing under our jurisprudence. See United States v. Westbrooks, 858 F.3d
317, 327-28 (5th Cir. 2017), petition for cert. filed (July 10, 2017) (No. 17-5112);
United States v. Nolen, 543 F.3d 732, 732-33 (5th Cir. 2008); United States v.
Nolen, 523 F.3d 331, 332 (5th Cir. 2008); United States v. Nolen, 472 F.3d 362,
382 (5th Cir. 2006).
      Likewise unavailing is his claim that the amount of restitution was not
properly established. This amount was shown in the PSR, and Thody offered
no evidence to rebut the facts recited therein. Accordingly, the district court
was entitled to rely upon the amount of restitution given in the PSR when




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sentencing Thody. See Westbrooks, 858 F.3d at 330; United States v. Nava, 624
F.3d 226, 231 (5th Cir. 2010).
      Thody’s final argument is that his religious freedom has been infringed
in violation of the Religious Freedom Restoration Act (RFRA). Because Thody
did not raise this claim in the district court, review is for plain error only. See
United States v. Comrie, 842 F.3d 348, 350 (5th Cir. 2016).               Thody’s
conclusional assertions concerning an alleged burden on his religious freedom
are insufficient to meet this standard. See Comrie, 842 F.3d at 350-51.
      AFFIRMED.




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