     Case: 11-50083     Document: 00511624544         Page: 1     Date Filed: 10/06/2011




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

                                                                            FILED
                                                                          October 6, 2011
                                     No. 11-50083
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BRANDON LEE JAMES, also known as Brandon Lee Orenstein,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CR-267-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Brandon Lee James appeals from the 120-month sentence imposed by the
district court following his conviction of one count of possession of an
unregistered firearm; the sentence was 15 months above the top of the applicable
guidelines range of 84-105 months of imprisonment.
        Following United States v. Booker, 543 U.S. 220 (2005), we review
sentences for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50083     Document: 00511624544      Page: 2   Date Filed: 10/06/2011

                                   No. 11-50083

so doing, we engage in a bifurcated review. Gall v. United States, 552 U.S. 38,
49-51 (2007); United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir.
2009). We must first ensure that the sentencing court committed no significant
procedural error. Gall, 552 U.S. at 51. If there is no procedural error, we review
the substantive reasonableness of the sentence under a deferential abuse of
discretion standard, taking into account the totality of the circumstances. Id.;
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Although James argues that the district court erred by taking into account
his extensive juvenile criminal history during sentencing, the district court was
free to do so. See United States v. Smith, 440 F.3d 704, 708-10 (5th Cir. 2006).
The district court was in the best position to evaluate James’s history and
characteristics, as well as the need for the sentence imposed to deter him from
further criminal conduct and to protect the public from his future crimes, and its
decision is entitled to deference. See § 3553(a); Gall, 552 U.S. at 51-52; Smith,
440 F.3d at 708-10.
      Further, the 15-month variance at issue is considerably less than other
sentences that this court has affirmed. See Smith, 440 F.3d at 708 n.5, 709-10
(upholding as reasonable variance from guidelines range maximum of 27 months
to 60 months); United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005)
(upholding departure from guidelines range maximum of 41 months to 120
months). That we “might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the district court.” Gall, 552
U.S. at 51.
      AFFIRMED.




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