     Case: 10-31141     Document: 00511608410         Page: 1     Date Filed: 09/21/2011




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

                                                                            FILED
                                                                        September 21, 2011
                                     No. 10-31141
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

AGON ELLIOTT LEBLANC, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:10-CR-38-1


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Agon Elliott LeBlanc, Jr. appeals the 300-month upward departure
sentence imposed by the district court following his guilty plea convictions for
two counts of possession of a firearm by a convicted felon and one count of
carjacking. LeBlanc asserts that the sentence was procedurally unreasonable
because the district court did not follow the U.S.S.G. § 4A1.3 procedure for
upward departures and because the district court did not provide adequate
reasons for the upward departure.              Because LeBlanc did not raise these

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-31141

arguments in the district court, review is limited to plain error. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009); see also Puckett
v. United States, 129 S. Ct. 1423, 1429 (2009).
      The district court did not plainly err in departing upward based on the
inadequacy of LeBlanc’s criminal history category and the violent nature of his
actions. The district court expressly referred to the undisputed facts in the
Presentence Report (PSR) which provided details concerning LeBlanc’s
numerous juvenile and adult criminal convictions that were not counted for
purposes of his criminal history score and the violent nature of LeBlanc’s
actions. The Guidelines specifically permit a sentencing court to depart upward
if it determines “that the [defendant’s] criminal history category does not
adequately reflect the seriousness of the defendant’s criminal history or
likelihood of recidivism.” U.S.S.G. § 4A1.3, comment. (backg’d). The district
court’s decision to departure upward was permissible under the Guidelines, was
based on permissible factors that advanced the objectives of 18 U.S.C. § 3553(a),
and was justified by the facts of the case. See United States v. Zuniga-Peralta,
442 F.3d 345, 347 (5th Cir. 2006). Further, the district court provided adequate
reasons to support the upward departure as it adopted the PSR and stated that
it was departing upward based on the inadequacy of LeBlanc’s criminal history
score and the violent nature of his actions. See United States v. Holt, 287
F. App’x 384, 385 (5th Cir. 2008); see also United States v. Castro-De Los Santos,
261 F. App’x 681, 682-83 (5th Cir. 2008).
      Although the district court did not explicitly state that it rejected the
intermediate offense levels, the district court’s explanation indicated that it
determined that the extent and nature of LeBlanc’s criminal history and the
violent nature of his actions warranted no less than 300 months of
imprisonment. Further, LeBlanc has not shown that any error affected his
substantial rights as he has not shown that there is a reasonable probability



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                                  No. 10-31141

that, but for the alleged errors, he would have received a lesser sentence. See
United States v. Jones, 444 F.3d 430, 438 (5th Cir. 2006).
      LeBlanc also argues that the sentence was substantively unreasonable.
The record indicates that the district court’s rationale justified the upward
departure as a whole and that the district court considered the Guidelines and
the § 3553(a) factors, including LeBlanc’s history and characteristics, the nature
and circumstances of the instant offenses, the need to deter future criminal
conduct, and the need to protect the public and promote respect for the law. See
United States v. Rajwani, 476 F.3d 243, 248-49 (5th Cir.), modified on other
grounds, 479 F.3d 904 (5th Cir. 2007); see also Zuniga-Peralta, 442 F.3d at 347.
Moreover, the extent of the departure was not excessive under the circumstances
as it did not exceed the statutory maximum sentences for the offenses, and this
court has affirmed similar and more substantial departures. See, e.g., United
States v. Brantley, 537 F.3d 347, 349-50 (5th Cir. 2008); see also United States
v. Lopez-Velasquez, 526 F.3d 804, 806-07 (5th Cir. 2008).
      AFFIRMED.




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