     Case: 09-31113     Document: 00511150501          Page: 1    Date Filed: 06/22/2010




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

                                                 FILED
                                                                            June 22, 2010
                                     No. 09-31113
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CHARLES R. YOUNG,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                               USDC No. 3:09-CR-9-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Charles R. Young appeals his 137-month sentence
imposed following his guilty plea to possession with intent to distribute five
grams or more of cocaine base.                 The district court departed upward
incrementally from criminal history category II to category VI, which resulted
in a guideline range of 110 to 137 months. Young argues that his sentence is
procedurally and substantively unreasonable.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-31113    Document: 00511150501 Page: 2        Date Filed: 06/22/2010
                                 No. 09-31113

      Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we engage in a
bifurcated analysis of the sentence imposed. United States v. Delgado-Martinez,
564 F.3d 750, 752 (5th Cir. 2009). Our first query is whether the district court
committed a “significant procedural error,” such as miscalculating the advisory
guidelines range. Id. at 751-53. If the district court’s decision is procedurally
sound, we then consider “the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard . . . tak[ing] into account the
totality of the circumstances.” Gall, 552 U.S. at 51. In exercising this bifurcated
process, we review the district court’s application of the Guidelines de novo and
its factual findings for clear error. United States v. Jeffries, 587 F.3d 690, 692
(5th Cir. 2009).
      Young asserts that his sentence is procedurally unreasonable because the
court’s decision to depart upward resulted from its mistaken belief that it had
no authority to account for the sentencing disparities between crack cocaine and
powder cocaine. As Young raised the issue in the district court, he has preserved
the issue for review. Young’s assertion, however, is belied by the record. In
addressing Young’s objection to the calculation of his base offense level, the
district court correctly observed that the appropriate base offense level was the
one set forth in the United States Sentencing Guidelines and that the court’s
hands were tied as far as the base offense level calculation went. At no point did
the district court indicate a belief that it had no authority to impose a lower
guideline sentence if it chose to do so. Morever, it is clear from the record that
the district court’s decision to upwardly depart was based on Young’s extensive
criminal history, the likelihood of recidivism, and the need to protect the public.
      Young maintains that the district court committed a second procedural
error by basing its decision to depart upward almost exclusively on his arrest
record. Because Young did not raise this issue in the district court, our review
is for plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).



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                                   No. 09-31113

      The consideration of prior arrests, without more, is specifically prohibited
by the Guidelines as a ground for an upward departure. U.S.S.G. § 4A1.3(a)(3);
United States v. Jones, 444 F.3d 430, 434 (5th Cir. 2006). The record indicates,
however, that the district court’s statements regarding Young’s arrests were
merely a part of the court’s recitation of Young’s lengthy and often violent
criminal history and its determination that his criminal history category was
underrepresented. It is apparent from the record that the departure was based
on more than the mere fact of Young’s arrests.
      Even if it is assumed that Young’s arrest record was a factor in the district
court’s decision to depart upward, the court imposed an alternative sentence of
137 months as a variant sentence. Under a variant sentence, consideration of
the defendant’s arrest record is not foreclosed by § 4A1.3. See United States v.
Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). The district court committed
no procedural error.
      Young next contends that his 137-month sentence is substantively
unreasonable. A sentence that results from a guideline-authorized upward
departure, as is the case here, is considered to be a guideline sentence. See
United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006). Reasonableness
review, in the context of a guidelines departure, requires us to evaluate both “the
district court’s decision to depart upwardly and the extent of that departure for
abuse of discretion.” United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.
2006) (internal quotation marks and citation omitted). Because Young did not
object to the substantive unreasonableness on the grounds that he advances on
appeal, however, our review is for plain error. See United States v. Peltier, 505
F.3d 389, 390-92 (5th Cir. 2007).
      The district court gave lengthy, detailed reasons for its departure, noting
the seriousness of Young’s offense, the seriousness of his involvement in the drug
trafficking culture in general, his violent criminal history, the need to promote
respect for the law, and the need to protect the public from future crimes. See

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                                No. 09-31113

United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Young’s disagreement
with the district court’s assessment of his sentence is insufficient to show that
it is unreasonable. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006).
      AFFIRMED.




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