     Case: 18-10488      Document: 00515027113         Page: 1    Date Filed: 07/09/2019




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


                                    No. 18-10488                              FILED
                                                                           July 9, 2019
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BRANDON DEAN RODDAM, also known as Dean-O, also known as Dknow,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:17-CR-198-1


Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Brandon Dean Roddam pleaded guilty to conspiracy to possess with
intent to distribute 500 grams or more of a mixture and substance containing
a detectable amount of methamphetamine in violation of 21 U.S.C. § 846 and
§ 841(a)(1), and he was sentenced above the advisory guideline range to 324
months of imprisonment and five years of supervised release. Roddam argues
that the district court imposed a substantively unreasonable sentence 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 18-10488

varying upward from the advisory guideline range by giving an unreasonable
amount of weight to his criminal history and by not giving enough weight to
the effect that his methamphetamine addiction had on his criminal conduct.
He contends that nothing in the sentencing guidelines, policy statements, or
commentary warranted an upward variance to 324 months. He argues that
the district court did not state specifically at sentencing how the 18 U.S.C.
§ 3553(a) factors influenced the decision to vary upwardly. He states that
“drug addiction, in and of itself, is certainly not a basis to upwardly depart,”
and he argues that the district court did not seem to have an accurate
appreciation for the effects of addiction.
      This court reviews sentences for reasonableness by engaging in a
bifurcated review. Gall v. United States, 552 U.S. 38, 51 (2007). First, this
court must ensure that the sentencing court committed no significant
procedural error, such as “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including an explanation
for any deviation from the Guidelines range.”         Id.    If the sentence is
procedurally sound, this court then considers whether it is substantively
reasonable under an abuse-of-discretion standard. Id.
      Roddam’s argument that the district court did not state specifically at
sentencing how the § 3553(a) factors influenced the decision to vary upwardly
is a procedural argument. Roddam did not challenge in the district court the
procedural unreasonableness of his sentence due to the district court’s alleged
failure to explain its reasons for the upward departure. The district court gave
a lengthy recitation of Roddam’s criminal history, noting that Roddam’s
criminal record demonstrated a lack of respect for “the laws, and the rights of



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                                  No. 18-10488

other persons.”   The district court’s explanation for the upward variance
implicates § 3553 factors, specifically, the history of the defendant, the need to
promote respect for the law, and to protect the public, as stated in the district
court’s statement of reasons. See 18 U.S.C. § 3553(a)(1) and (2)(A), (C). The
district court did not plainly err in explaining its reasons for the upward
variance. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.
2008).
      Roddam contends that his objection to an upward variance and his
objection to the sentence imposed as violating the Eighth Amendment
preserved the issue of the substantive unreasonableness of his sentence for
review. The Government argues that it is not clear that Roddam’s vague
Eighth Amendment objection at sentencing was in fact an argument that his
sentence was substantively unreasonable. We need not determine whether
plain error review is appropriate because Roddam’s arguments fail even under
an abuse-of-discretion standard of review. See United States v. Rodriguez, 523
F.3d 519, 525 (5th Cir. 2008).
      A district court may impose (1) a sentence within the Guidelines range,
(2) “an upward or downward departure as allowed by the Guidelines,” and
(3) “a non-Guideline sentence or a variance that is outside of the relevant
Guidelines range.” United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008)
(internal quotation marks and citation omitted). The district court imposed an
upward variance based on the factors in § 3553(a). “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).



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                                 No. 18-10488

      “A defendant’s criminal history is one of the factors that a court may
consider in imposing a non-Guideline sentence.” Smith, 440 F.3d at 709.
Section 4A1.3 of the Sentencing Guidelines applies to upward departures
based on unrepresentative criminal history, not to variances. United States v.
Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007). A district court is not required
to follow the methodology provided for in § 4A1.3 for a departure if it imposes
a non-Guidelines sentence or variance. United States v. Gutierrez, 635 F.3d
148, 152 (5th Cir. 2011).
      The district court’s consideration of Roddam’s criminal history was not
an improper consideration in choosing a sentence above the Guidelines range
and does not demonstrate a clear error of judgment in balancing the sentencing
factors. See Smith, 440 F.3d at 709. The district court considered Roddam’s
mitigating argument regarding his drug addiction and concluded that while
his use of methamphetamine may have played some role in his bad conduct
over the years, it did not account for all the things he had done and that there
was something more at work, which the district court concluded was Roddam’s
lack of respect for the law and the rights of others. Roddam’s arguments
amount to a disagreement with the weight the court gave to the sentencing
factors and does not show that the district court erred. See Gall, 552 U.S. at
56-60 (explaining that appellate courts will not reweigh the sentencing
factors); see also United States v. Hernandez, 633 F.3d 370, 375-76 (5th Cir.
2011) (explaining that a district court does not err in weighing some § 3553(a)
factors more heavily than others).
      AFFIRMED.




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