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

                                                                         FILED
                                                                         June 9, 2008

                                      No. 05-30536                  Charles R. Fulbruge III
                                                                            Clerk

UNITED STATES OF AMERICA

                                                 Plaintiff-Appellant
v.

RICHARD ROWAN, II

                                                 Defendant-Appellee



                    Appeal from the United States District Court
                       for the Western District of Louisiana


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, GARZA, and PRADO, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
      We hereby withdraw the previous panel opinion,1 and we substitute the
following in its place:
      Plaintiff-Appellant (the “Government”) appeals the District Court decision
sentencing Defendant-Appellee Richard Rowan, II (“Rowan”) to a sixty-month
period of probation following his conviction for possession of child pornography
in violation of 18 U.S.C. § 2252A(a)(5)(B). We AFFIRM.




      1
          United States v. Rowan, No. 05-30536, 2008 WL 2266995, (5th Cir. June 4, 2008)
                                  No. 05-30536

      Rowan pleaded guilty to the illegal possession of child pornography.
During sentencing, the District Court properly calculated his Guidelines range
as 46-57 months of imprisonment. Rather than sentencing Rowan to a term of
imprisonment within this range, or even to a modest period of incarceration, the
District Court sentenced him to a sixty-month period of probation.           The
Government timely appealed. We vacated and remanded for resentencing under
United States v. Duhon, 440 F.3d 711 (5th Cir. 2006) (vacating sentence of
probation for possession of child pornography), cert granted, judgment vacated
by 128 S. Ct. 853 (2008). Rowan petitioned for certiorari.
      Following our decisions in Duhon and Rowan, the Supreme Court issued
Gall v. United States, 128 S. Ct. 586 (2007) (clarifying appellate review of
District Court sentencing decisions). The Supreme Court granted Rowan’s
petition for certiorari, vacated our previous decision in Rowan, and remanded
the case for consideration under Gall. We now revisit this case in light of Gall.
      We review District Court sentencing decisions for abuse of discretion.
Gall, 128 S. Ct. at 597. Our review is bifurcated. Id. at 597-98; United States
v. Rodriguez, 523 F.3d 519, 524-25 (5th Cir. 2008). First, we must determine
whether the District Court committed any significant procedural error. Gall,
128 S. Ct. at 597; Rodriguez, 523 F.3d 525. The District Court commits a
procedural error if: it miscalculates or fails to calculate the proper Guidelines
range; it treats the Guidelines as mandatory; it imposes a sentence based on
clearly erroneous facts; it fails to consider the factors set forth in 18 U.S.C. §
3553(a); or it fails adequately to explain its chosen sentence or any deviation
from the Guidelines range. See Gall, 128 S. Ct. at 597; Rodriguez, 523 F.3d 525.
Second, if the District Court has committed no significant procedural error, we
review the sentence for substantive reasonableness. See Gall, 128 S. Ct. at 597;
Rodriguez, 523 F.3d 525.



                                        2
                                   No. 05-30536

      Sentences fall into three categories: (1) those within a properly calculated
Guidelines range, (2) those outside a properly calculated Guidelines range that
are based on an allowed upward or downward departure, and (3) those outside
a properly calculated Guidelines range that are not based on an allowed
departure. United States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007). Rowan’s
sentence is outside the applicable Guidelines range and was not based on an
allowed departure. See U.S.S.G. 5B1.1. Therefore, Rowan’s sentence is a non-
Guidelines sentence. See id.; Davis, 478 F.3d at 273.
      When the District Court imposes a non-Guideline sentence, we “may
consider the extent of the deviation, but must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 128 S. Ct. at 597. Even if we “might reasonably have concluded
that a different sentence was appropriate, [this] is insufficient to justify reversal
of the district court.” See id.
      We find no significant procedural error in the District Court’s sentencing
decision: the District Court properly calculated the Guideline range, heard
arguments concerning appropriate sentences, and meticulously considered the
§ 3553(a) factors. Based on the foregoing, the District Court concluded that a
non-Guidelines sentence of a sixty-month period of probation was appropriate.
In light of the deferential standard set forth in Gall, 128 S. Ct. at 597-98, we
AFFIRM.




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