     Case: 11-10908     Document: 00511896145         Page: 1     Date Filed: 06/22/2012




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

                                                                            FILED
                                                                           June 22, 2012
                                     No. 11-10908
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CAMERON BLAIR PRIMM,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-41-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Cameron Blair Primm challenges being sentenced above the advisory
Guidelines sentencing range to 80-months’ imprisonment, following his guilty-
plea conviction for possession, with intent to distribute, gamma-hydroxybutyric
acid, a controlled substance. See 21 U.S.C. § 841(a)(1), (b)(1)(C). Prior to
sentencing, the district court notified the parties of its tentative conclusion that
the sentence imposed should be above the advisory range calculated for 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10908    Document: 00511896145       Page: 2   Date Filed: 06/22/2012

                                   No. 11-10908

presentence investigation report. As sentencing, the correct advisory range was
determined to be 46 to 57 months.
      Primm contends the district court imposed a variance but, in doing so,
committed procedural error by failing to explain how it selected the extent of the
variance and the reason for bypassing intermediate sentencing ranges. He
acknowledges, however, that the district court explained why it chose to impose
a variance.     Additionally, Primm contends that, because there was no
explanation of how the sentence was chosen, the sentence was necessarily
arbitrary and, therefore, substantively unreasonable.
      Although post-Booker the Sentencing Guidelines are advisory only, and a
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the advisory Guidelines
sentencing range. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect,
its application of the Guidelines is reviewed de novo; its factual findings, only for
clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008). Our court reviews sentences for reasonableness in the light of the 18
U.S.C. § 3553(a) sentencing factors. Gall, 552 U.S. at 46, 49-50 (2007). And, the
abuse-of-discretion standard applies “whether the sentence imposed is inside or
outside the [advisory] Guidelines [sentencing] range”. Id. at 51.
      A “sentencing court is free to conclude that the applicable Guidelines
range gives too much or too little weight to one or more [sentencing] factors, and
may adjust the sentence accordingly under § 3553(a)”.             United States v.
Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). Accordingly, it may impose
either of two sentence types that do not fall within the initially calculated
advisory Guidelines sentencing range:         a departure, which is a sentence
authorized by one or more provisions of the Guidelines; or a variance, which is
a sentence that finds no specific authorization in the Guidelines. United States
v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).



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                                  No. 11-10908

      The district court determined that Primm merited a sentence outside the
advisory sentencing range, but it did not definitively label the sentence as a
departure or a variance. The court explained, however, that a sentence above
the advisory sentencing range was appropriate because of: the nature and
circumstances of the crime; Primm’s history and characteristics; and the need
to impose a sentence commensurate with the seriousness of the crime, to
promote respect for the law, to provide just punishment, to deter criminal
conduct, and to protect the public from recidivist activity. Therefore, the
sentence was a variance. United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th
Cir. 2007).
      Regarding the ultimate issue of substantive reasonableness, “the specific
characterization [of the sentence] is irrelevant [if] the sentence imposed was
reasonable under the totality of the relevant statutory factors”. Brantley, 537
F.3d at 349.   Resolution of substantive reasonableness, however, must be
preceded by an examination of the sentence’s procedural soundness. Gall, 552
U.S. at 49-50. To gauge the sentence’s procedural soundness, whether a sentence
is a variance or a departure is significant. Cf. United States v. Ashburn, 38 F.3d
803, 808-09 (5th Cir. 1994) (en banc), with Mejia-Huerta, 480 F.3d at 723.
      The requirement that the district court examine bypassed criminal-history
categories to arrive at a sentence outside the initial advisory Guidelines
sentencing range derives from Guidelines § 4A1.3, which authorizes a departure.
See Ashburn, 38 F.3d at 808-09.       As discussed, Primm did not receive a
departure sentence; therefore, the district court was not required to conduct a
category-by-category analysis in imposing the variance. See Mejia-Huerta, 480
F.3d at 723. Accordingly, there is no merit to Primm’s contention that the
district court committed procedural error by not explaining how it chose the
extent of that variance.
      Needless to say, “[t]he sentencing judge is in a superior position to find
facts and judge their import under § 3553(a)”. Gall, 552 U.S. at 51. This

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                                No. 11-10908

includes the determination whether the § 3553(a) factors support the variance
imposed. Id. Primm points to no basis for forgoing a deferential review of the
district court’s choice of sentence.       Instead, he bases his substantive-
unreasonableness claim on his contention that procedural error necessarily
resulted in the arbitrary selection of his sentence.       Because he has not
demonstrated any procedural error, Primm cannot prevail on his dependent
claim of substantive unreasonableness.
      AFFIRMED.




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