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

                                                                   FILED
                           No. 08-50511
                                                                  June 29, 2009
                         Summary Calendar
                                                             Charles R. Fulbruge III
                                                                     Clerk
UNITED STATES OF AMERICA

                                      Plaintiff-Appellee

v.

CARL DENNIS GRANT

                                      Defendant-Appellant

                       ______________________

                     Consolidated with 08-50520
                      ______________________

UNITED STATES OF AMERICA

                                      Plaintiff-Appellee

v.

CARL DENNIS GRANT, also known as Eric Dennis Lee

                                      Defendant-Appellant


             Appeals from the United States District Court
                   for the Western District of Texas
                       USDC No. 1:07-CR-213-1
                            No. 08-50511 c/w No. 08-50520

Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Carl Dennis Grant appeals the 240-month sentence imposed following his
guilty plea to one count of conspiracy to possess with intent to distribute cocaine
base. The sentence was 78 months above the advisory guideline maximum
sentence of 162 months.          The court characterized the sentence as both a
departure based on Grant’s extensive criminal history under U.S.S.G. § 4A1.3
and as a variance based 18 U.S.C. § 3553(a), citing the need for more effective
deterrence and to protect the public from Grant’s criminal activity.
       The court noted that Grant had “a criminal history that ranks about as
high as anybody [the court had] seen in over 16 years.” The court also cited
Grant’s violations of supervised release, his fugitive status in 2007, his use of
numerous aliases, and the failure of repeated incarceration and drug treatment
to modify Grant’s behavior.
       We review the sentence for plain error because Grant did not raise in the
district court any of the objections he raises on appeal, including any objection
to the reasonableness of the sentence. See United States v. Lopez-Velasquez, 526
F.3d 804, 806 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008). Under plain error
review, we have discretion to reverse only if there was a clear and obvious error
that affected the defendant’s substantial rights and that seriously affected “the
fairness, integrity, or public reputation of judicial proceedings.” Id. (internal
quotation marks and citations omitted); see Puckett v. United States, 129 S. Ct.
1423, 1429 (2009).
       To determine the reasonableness of a sentence, we “first ensure that the
district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the


       *
         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. 08-50511 c/w No. 08-50520

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence – including an explanation for any deviation from the
Guidelines range.” Gall v. United States, 128 S. Ct. 586, 597 (2007).
      “If reliable information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit other crimes,
an upward departure may be warranted.”           § 4A1.3(a)(1).   Grant’s criminal
history score was 23, 10 points above the threshold for the highest Criminal
History Category of VI.      A criminal history score above the Category VI
threshold is a valid basis for an upward departure. See United States v. Smith,
417 F.3d 483, 491-92 (5th Cir. 2005); United States v. Lee, 358 F.3d 315, 328 (5th
Cir. 2004).
      The presentence report also recounted several unscored offenses. Grant’s
unscored convictions were an additional valid basis for the upward departure.
See United States v. Pennington, 9 F.3d 1116, 1118 (5th Cir. 1993).
      Grant’s contentions that the court improperly based the sentence on
factual error or the improper weighing of factors are neither significant nor
supported by the record. Contrary to those contentions, Grant’s sentence could
be based on nonviolent conduct and juvenile offenses. See Lee, 358 F.3d at 329
(affirming departure based on nonviolent offenses; Pennington, 9 F. 3d at 1118
(same); see also United States v. Carpenter, 963 F.2d 736, 744 (5th Cir. 1992)
(affirming upward departure based in part on juvenile offenses). Because the
court based the departure on acceptable factors, it committed no procedural
error. See Gall, 128 S. Ct. at 597; Smith, 417 F.3d at 490 & n.24.
      The extent of a variance is a facet of the substantive reasonableness of the
sentence under § 3553(a). See Gall, 128 S. Ct. at 597. We “give due deference
to the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” Id. Grant contends that the court gave too much weight

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                        No. 08-50511 c/w No. 08-50520

to the need to deter future criminal conduct and to protect the public. He asserts
that “his maturity is a sign that he will not engage in similarly dangerous
conduct in the future.” The record reveals no evidence of maturity or reform.
Moreover, there is no support for Grant’s suggestion that deterrence is a valid
sentencing rationale only if it is needed specifically to protect the public from
violence. The extent of the variance or departure was not unreasonable. See
Smith, 417 F.3d at 492 & n.40.
      Grant has failed to show that his sentence was unreasonable.            The
judgment of the district court is AFFIRMED.




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