     Case: 13-30695      Document: 00512567548         Page: 1    Date Filed: 03/20/2014




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

                                    No. 13-30695                                   FILED
                                  Summary Calendar                           March 20, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARCUS D. BRUMFIELD,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:12-CR-194-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Marcus D. Brumfield appeals the sentence for his conviction for
distribution of five grams or more of methamphetamine. The district court
varied upward from the guidelines range of 60 to 71 months to 100 months of
imprisonment and five years of supervised release. Brumfield contends that
his 100-month sentence is substantively unreasonable because the primary
reason for the upward variance was the district court’s perception that his prior


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-30695

drive-by-shooting sentence was lenient, which he argues the district court
based on inherently unreliable information.
      We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). However, we will
review Brumfield’s claim of error for plain error because his general objection
to the sentence was not “sufficiently specific to alert the district court to the
nature” of the error he now asserts and did not provide the district court an
opportunity to correct the error. United States v. Neal, 578 F.3d 270, 272 (5th
Cir. 2009). To show plain error, Brumfield must show that the error was clear
or obvious and affects his substantial rights. See Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to
correct the error but only if it “‘seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.’” Id. (alteration in original) (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)).
      In reviewing the substantive reasonableness of a sentence, we consider
“the totality of the circumstances, including the extent of any variance from
the Guidelines range” and “must give due deference to the district court’s
decision that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the extent of
the variance.” Gall, 552 U.S. at 51. “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).
      At sentencing, the district court described the three-year suspended
sentence for accessory after the fact to a drive-by-shooting as “lenient.” The
record does not support Brumfield’s assertion that the district court believed



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                                  No. 13-30695

the prior sentence was lenient because he was actually guilty of a more serious
charge since the district court made no explicit statement to this effect. It was
not improper for the district court to consider the leniency of Brumfield’s prior
sentence. See United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004).
Moreover, the record does not support Brumfield’s assertion that the district
court’s perception that his prior sentence was lenient was the primary reason
for the upward variance.       The district court did not make any explicit
statement to this effect and mentioned the leniency of the prior sentence once.
The district court cited the § 3553(a) factors and articulated several other
compelling reasons for imposing an upward variance, including Brumfield’s
criminal history in light of his age, his poor performance on probation, the
seriousness of the instant offense, the likelihood that he would commit further
crimes, and the need to protect the public from further crimes. Rather than
focusing on any particular prior offense or sentence, the district court was
particularly troubled by the persistency of Brumfield’s criminal conduct.
      The extent of the variance, 29 months above the guidelines maximum of
71 months, is within the range of variances we have upheld. See United States
v. McElwee, 646 F.3d 328, 345 (5th Cir. 2011). Given the significant deference
that is due to a district court’s consideration of the § 3553(a) factors, see Gall,
552 U.S. at 51, and the district court’s reasons for its sentencing decision,
Brumfield has not demonstrated that the sentence is substantively
unreasonable, see McElwee, 646 F.3d at 344-45. Accordingly, the district court
did not plainly err or abuse its discretion.
      The judgment of the district court is AFFIRMED.




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