     Case: 12-60813       Document: 00512334606           Page: 1    Date Filed: 08/07/2013




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

                                                                              FILED
                                                                            August 7, 2013
                                     No. 12-60813
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CHOYES HILTERBRAND, also known as Ken Carroll,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 3:12-CR-7-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Choyes Hilterbrand appeals his eight-year sentence following his guilty
plea conviction for wire fraud. As part of the plea agreement, Hilterbrand
waived his right to appeal his conviction and sentence without exception.
Because the rearraignment transcript is not part of the record on appeal, we
cannot determine whether Hilterbrand knowingly and voluntarily waived his
right to appeal. However, because Hilterbrand’s challenge to his sentence fails,

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 12-60813

we pretermit consideration of the effect of the appeal waiver. See United
States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006). Accordingly, we deny the
Government’s motion for dismissal, or in the alternative, for summary
affirmance.
      Hilterbrand contends that his eight-year sentence, a variance from the
advisory sentencing guidelines range of 37 to 46 months, was substantively
unreasonable. Following United States v. Booker, 543 U.S. 220 (2005), our
review of sentences is for reasonableness in light of the sentencing factors set
forth in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d 511, 518-19 (5th
Cir. 2005). When the district court has imposed a sentence that varies from the
guidelines range, reasonableness review requires that we evaluate whether the
sentence “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).
Hilterbrand did not object in the district court that his sentence was
substantively unreasonable. Accordingly, as he concedes, our review is for
plain error. See United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007).
      The record indicates that the district court properly considered the
§ 3553(a) factors. Further, the district court imposed the eight-year sentence
due to Hilterbrand’s submission of fraudulent character reference letters,
Hilterbrand’s fraudulent financial documents, his providing testimony that was
not credible, and for not being repentant. See United States v. Brantley, 537
F.3d 347, 349-50 (5th Cir. 2008).
      To the extent that Hilterbrand contends that the district court, in
arriving at his variant sentence, impermissibly engaged in double counting,
Hilterbrand has not shown any error. See id. at 350. Hilterbrand has failed to
establish that the district court relied upon an improper factor and, to the
extent that he merely disagrees with his sentence and the district court’s


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                                 No. 12-60813

weighing of those factors, he has not shown that he is entitled to relief on that
basis. See Gall v. United States, 552 U.S. 38, 51 (2007). Finally, the extent of
the variance is reasonable. We have upheld variances considerably greater
than the increase to Hilterbrand’s sentence. E.g., Brantley, 537 F.3d at 349-50;
United States v. Lopez-Velasquez, 526 F.3d 804, 805-07 (5th Cir. 2008).
      MOTION FOR DISMISSAL, OR IN THE ALTERNATIVE, FOR
SUMMARY AFFIRMANCE DENIED; AFFIRMED.




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