     Case: 16-10379      Document: 00513828759         Page: 1    Date Filed: 01/10/2017




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

                                    No. 16-10379                                FILED
                                  Summary Calendar                        January 10, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANDRE HUGH SAUNDERS, also known as David Turner,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-240-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Andre Hugh Saunders appeals his above-guidelines 78-month sentence
imposed following his guilty plea to one count of mail fraud. He argues that
his sentence is substantively unreasonable because the district court
erroneously determined that the guidelines enhancement for vulnerable
victims did not sufficiently take into account the multiple victims and the
serious harm caused to them by the fraudulent scheme.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10379

      Generally, this court will “consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.”        Gall v. United
States, 552 U.S. 38, 51 (2007). However, Saunders did not challenge in the
district court the above-guidelines sentence based on the district court’s
reliance on the vulnerability of the victims. Therefore, review of this issue is
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357 361
(5th Cir. 2009).
      A non-guidelines sentence is unreasonable if 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.” United States v. Chandler, 732
F.3d 434, 437 (5th Cir. 2013) (internal quotation marks and citation omitted).
A district court has the discretion to determine “that the applicable Guidelines
range gives too much or too little weight to one or more factors” and may
determine that a guidelines sentence “is not lengthy enough to serve the
objectives of sentencing.” United States v. Williams, 517 F.3d 801, 809 (5th
Cir. 2008). In making its decision to vary upward, the district court considered
that Saunders defrauded several elderly and sick individuals of large sums of
money that resulted in a substantial financial hardship for at least two of the
victims and that Saunders threatened the livelihood of one of the victims to
obtain additional funds. It also considered that Saunders shared the lists of
vulnerable victims with others, creating a further threat to public safety.
Based on these considerations and the 18 U.S.C. § 3553(a) factors, the district
court properly determined that the two-level enhancement for a vulnerable
victim did not sufficiently take into account the multiple victims and
circumstances in this case. The district court did not commit plain error in
giving significant weight to the vulnerability of the victims, a consideration



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                                  No. 16-10379

that advanced the objectives of § 3553(a).        See Gall, 552 U.S. at 49-51;
Chandler, 732 F.3d at 437; Williams, 517 F.3d at 810-11.
      Saunders argues that the degree of the departure should be evaluated
and that the upward variance of more than two years above the top of the
guidelines range was unreasonable under the totality of the circumstances.
      In considering the substantive reasonableness of a sentence, the court
considers “the totality of the circumstances, including the extent of any
deviation from the Guidelines range, while affording due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent
of the variance.” United States v. McElwee, 646 F.3d 328, 337 (5th Cir. 2011)
(internal quotations and citation omitted). In varying upward, the district
court considered the vulnerability of the four victims along with the § 3553(a)
factors of deterrence, promoting safety and respect for the law, and the need
for a just punishment. The 27-month variance was “commensurate with the
individualized, case-specific reasons provided by the district court” and did not
reflect an abuse of discretion. McElwee, 646 F.3d at 338 (internal quotations
and citation omitted). Based on the totality of the circumstances, and giving
deference to the district court’s determination that the § 3553(a) factors
warranted the extent of the variance, the sentence was substantively
reasonable. See id. at 337.
      The sentence is AFFIRMED.




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