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

                                                 FILED
                                                                         November 10, 2009
                                     No. 09-30109
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

ZIERICH DEWONE SNOW,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                No. 5:08-CR-120-1




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       Zierich Snow appeals the sentence imposed following his guilty-plea con-
viction of possession with intent to distribute 50 grams or more of cocaine base,



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                    No. 09-30109

or crack, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1).
Snow argues that the district court abused its discretion by imposing an unrea-
sonable sentence of 192 months’ imprisonment, despite a sentencing guideline
range of 78-97 months and a statutory mandatory minimum sentence of 10
years.
         We need not determine whether Snow failed to preserve this issue in the
district court, because the judgment withstands scrutiny even under the abuse-
of-discretion standard. See Gall v. United States, 128 S. Ct. 586, 597 (2007).
Because Snow has not argued that there is procedural error, we consider the
substantive reasonableness of the sentence. See United States v. Brantley, 537
F.3d 347, 349 (5th Cir. 2008).
         The district court adequately articulated the basis of its sentence. See
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006), which was informed
by careful consideration of the 18 U.S.C. § 3553(a) factors in light of the facts,
see Gall, 128 S. Ct. at 597-98 and n.6. The district court provided fact-specific
reasons for the sentence and in particular cited Snow’s prior crimes, which
included attempted second-degree murder and assault of a police officer. The
court observed that Snow’s prior terms of imprisonment had not deterred his
criminal behavior. Criminal history is a factor that may be considered in im-
posing a non-guideline sentence. See United States v. Herrera-Garduno, 519
F.3d 526, 531 (5th Cir. 2008).
         The court further indicated that it had considered, as called for by § 3553-
(a)(1), the nature and circumstances of the offense and Snow’s history and char-
acteristics. The court’s reasons also indicate that the sentence is necessary to
reflect the seriousness of the offense, to promote respect for the law, and to pro-
vide just punishment, as set forth in § 3553(a)(2)(A), to provide adequate deter-
rence to criminal conduct, as set forth in § 3553(a)(2)(B), and to protect the pub-
lic from further crimes by Snow, as set forth in § 3553(a)(2)(C). Snow’s sugges-
tion that the sentence is the result of a personality clash between him and the

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                                  No. 09-30109

district court is belied by the record. Moreover, a court may rely on factors
already incorporated by the guidelines to support a non-guideline sentence. See
Brantley, 537 F.3d at 350.
      Regarding the extent of the departure, although the sentence represents
a 60% increase above the mandatory minimum, see 21 U.S.C. § 841(b)(1)(A)(iii),
it is less than the statutory maximum of life imprisonment authorized by the
statute, see id.; see also United States v. Williams, 517 F.3d 801, 812 (5th Cir.
2008) (using statutory maximum for comparison). The extent of the variance in
Snow’s case is consistent with other sentences that this court has affirmed. See
Brantley, 537 F.3d at 348-50 (applying plain error review and affirming a sen-
tence 253% higher than the top of the guidelines range); Smith, 440 F.3d at 708-
10 & n.5 (upholding departure from guidelines range maximum of 27 months to
60 months); United States v. Jones, 444 F.3d 430, 433 (5th Cir. 2006) (upholding
departure from guidelines range maximum of 57 months to statutory maximum
of 120 months); United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005) (up-
holding departure from guidelines range maximum of 41 months to 120 months);
United States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995) (upholding
departure from maximum of 71 months to 240 months).
      In light of the foregoing and the deference that this court affords to the
district court’s findings regarding § 3553(a), that court did not abuse its discre-
tion by concluding that a 192-month sentence was reasonably necessary to
achieve the objectives of § 3553(a). See Gall, 128 S. Ct. at 597.
      The judgment is AFFIRMED.




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