     Case: 11-60092     Document: 00511608584         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. 11-60092
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROBERT KEITH KING,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:10-CR-77-1


Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
        Robert Keith King appeals from his guilty plea conviction of being a
convicted felon in possession of a firearm. He contends that his 60-month
sentence, which was the result of a variance from his 30-37 month guideline
sentencing range, was unreasonable.
        The district court’s variance was based largely on two episodes. First,
King fired the firearm he was convicted of possessing in the direction of his
father’s pickup truck. Second, King denied to the probation officer that he had

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60092

a tattoo when he had an Aryan Nations tattoo from a prior period of
incarceration.
      Criminal sentences are reviewed for reasonableness in light of the
sentencing factors listed in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d
511, 519-20 (5th Cir. 2005). Pursuant to Gall v. United States, 552 U.S. 38, 49-
50 (2007), this court must determine whether the sentence imposed is
procedurally sound, including whether the calculation of the advisory guidelines
range is correct, and whether the sentence imposed is substantively reasonable.
In cases where error has been preserved, sentences both “inside [and] outside the
Guideline range” are reviewed for abuse of discretion. Gall, 552 U.S. at 51. If
the sentencing court did not commit procedural error the appellate court should
apply an abuse of discretion standard to determine if the sentence is
substantively reasonable. See id.
      If the court concludes that a sentence outside the Guidelines is warranted,
it “must consider the extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance.” Id. at 50. “A
non-Guideline sentence unreasonably fails to reflect the statutory sentencing
factors where it (1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      A district court imposing a variance outside the guidelines system must
articulate its reasons more throughly “than when it imposes a sentence under
the authority of the Sentencing Guidelines.” Smith, 440 F.3d at 707; see Gall,
552 U.S. at 50. The court’s reasons for the extent of the variance must be
“fact-specific” and consistent with the § 3553(a) sentencing factors. Smith, 440
F.3d at 707. The district court’s explanation of the sentence must “enable the
reviewing court to determine whether, as a matter of substance, the sentencing
factors in section 3553(a) support the sentence.” Id.

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                                   No. 11-60092

      The district court addressed the circumstances of the offense of conviction
when it considered whether King had fired the weapon at Danny King after
being told to get out of the vehicle. See § 3553(a)(1). Whether King had shot at
Danny King previously was relevant to King’s state of mind when he fired the
weapon towards the pickup truck. Cf. FED. R. EVID. 404(b) (providing that
extrinsic act evidence may be relevant to intent). Because King had shot out
Danny King’s window on a previous occasion, it was not improper for the district
court to infer that King purposely fired in the direction of the pickup truck, even
if he did not intend to kill or injure Danny King. During the commission of the
felon-in-possession offense, King demonstrated reckless indifference to Danny
King’s life and safety. Cf. United States v. Williams, 610 F.3d 271, 288 (5th Cir.
2010) (allowing the imposition of the death penalty on a showing of reckless
indifference resulting in death). King’s indifference to his father’s life and safety
suggested that the public--including Danny King--should be protected from him.
See § 3553(a)(2)(C).
      King’s past prison gang affiliation itself was arguably irrelevant to the
issues at sentencing. See United States v. Simkanin, 420 F.3d 397, 417-18 (5th
Cir. 2005) (stating that beliefs and associations must be relevant to sentencing
issues to be considered). However, King’s failure to disclose his tattoo impeded
the probation officer’s performance of her duty to prepare a complete presentence
report. King’s denial of a tattoo reflected on his lack of respect for the law and
his propensity to lie. See § 3553(a)(1), (a)(2)(A).
      King’s discharge of the rifle in Danny King’s direction took his possession
of the firearm out of the realm of garden variety felon-in-possession cases and
suggested that he was a danger to the public. The discharge was also part and
parcel of the nature and characteristics of the offense. His lie to the probation
officer about whether he had a tattoo reflected poorly on his personal
characteristics and on his respect for the law. The district court cited fact-
specific reasons for the sentence, and its reasons adequately reflected

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                                 No. 11-60092

consideration of the § 3553(a) factors. See Smith, 440 F.3d at 707. The decision
to vary to sentence above the 30-37 month guideline sentencing range was not
an abuse of discretion. See Gall, 552 U.S. at 51.
      King’s guideline sentencing range was 30-37 months of imprisonment, and
he faced a maximum statutory sentence of 10 years. See 18 U.S.C. § 924(a)(2).
The 60-month sentence actually imposed was 23 months higher than the highest
sentence in the guideline range, and was 60 months lower than the statutory
maximum. This court has affirmed similar or greater degrees of variance or
departure. See, e.g., United States v. Brantley, 537 F.3d 347, 349-50 (5th Cir.
2008); United States v. Jones, 444 F.3d 430, 433, 442-43 (5th Cir. 2006); United
States v. Zuniga-Peralta, 442 F.3d 345, 348 (5th Cir. 2006). King’s sentence was
reasonable and was not an abuse of discretion. See Gall, 552 U.S. at 51.
      AFFIRMED.




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