     Case: 15-30022      Document: 00513210217         Page: 1    Date Filed: 09/28/2015




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

                                    No. 15-30022                                  FILED
                                  Summary Calendar                        September 28, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMAL HOLLAND, also known as Westside,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:14-CR-114


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jamal Holland pleaded guilty pursuant to a written plea agreement to
one count of distribution of methamphetamine. At sentencing, the district
court determined, in accord with the presentence report, that Holland’s
advisory guidelines range was 110 to 137 months. The district court sentenced
Holland to an above guidelines sentence of 173 months of imprisonment. In




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-30022    Document: 00513210217     Page: 2   Date Filed: 09/28/2015


                                 No. 15-30022

his sole issue on appeal, Holland argues that the district court plainly erred by
sua sponte departing upward from the applicable advisory guidelines range.
      As Holland concedes, review is for plain error because he did not object
to his sentence in the district court on the same ground asserted on appeal.
See United States v. Milton, 147 F.3d 414, 420 (5th Cir. 1998). To establish
plain error, Holland must show a forfeited error that is clear or obvious and
that affects his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009). If he makes such a showing, this court has the discretion to correct
the error but will do so only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. See Puckett, 556 U.S. at 135.
      Holland’s argument is flawed because contrary to his assertions, the
sentence imposed did not represent a departure from the guidelines range.
Where a sentencing court calculates the guidelines range and imposes a
sentence outside of that range based on the 18 U.S.C. § 3553(a) factors, that
sentence constitutes a variance rather than a departure. United States v.
Mejia-Huerta, 480 F.3d 713, 721 (5th Cir. 2007). A court imposes a departure,
by contrast, when it applies a specified exception to the guidelines range
permitted by the Guidelines themselves. See id.; United States v. Smith, 440
F.3d 704, 707 (5th Cir. 2006).     Under Rule 32(h) of the Federal Rules of
Criminal Procedure, the district court must provide the defendant with notice
of its intent to impose an upward departure if such notice is not provided by
the presentence report or the Government.         However, such notice is not
required before the district court imposes an upward variance because
defendants, under an advisory guidelines system, can no longer expect a
sentence within an applicable guidelines range. Irizarry v. United States, 553
U.S. 708, 713-16 (2008).




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                                 No. 15-30022

      At sentencing, the district court explained that it had taken into account
the Sentencing Guidelines as well as the § 3553(a) factors, including the nature
and circumstances of Holland’s offense, Holland’s history and characteristics;
the seriousness of the offense; and the need to provide just punishment,
promote respect for the law, afford adequate deterrence to future criminal
conduct, and protect the public from future crimes. The district court did not
refer to the sentence as a departure from the Guidelines or cite to any
departure provision in the Guidelines. Indeed, the district court referred to
the sentence as a “nonguideline sentence.” Moreover, in its written statement
of reasons, the district court completed the section of the form devoted to
sentences outside of the guidelines, selected the specific § 3553(a) factors it
found relevant, and left blank the section devoted to departures.
      Because the court accounted for the guidelines range but imposed a
sentence outside of that range based on the § 3553(a) factors, the sentence
constituted a variance rather than departure. See Mejia-Huerta, 480 F.3d at
721. Accordingly, the district court was not compelled to give notice that it
intended to impose an above guidelines sentence. See Irizarry, 553 U.S. at 713-
16. The district court committed no error, plain or otherwise. See Puckett, 556
U.S. at 135.
      AFFIRMED.




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