     Case: 09-11139     Document: 00511236529          Page: 1    Date Filed: 09/17/2010




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

                                                 FILED
                                                                        September 17, 2010
                                     No. 09-11139
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

LORMAN TYRONE MILES,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:07-CR-132-1


Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Pursuant to a written plea agreement, Lorman Tyrone Miles pleaded
guilty to bank robbery and stipulated to committing three other bank robberies.
Miles appeals the 210-month sentence imposed pursuant to an upward
departure under U.S.S.G. § 4A1.3.
        We review the district court’s sentencing decisions for reasonableness
under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46,
51 (2007).     A district court acts within its discretion in departing upward

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-11139

pursuant to § 4A1.3 if its reasons for departure advance the objectives of
sentencing set forth in 18 U.S.C. § 3553(a)(2) and are justified by the facts of the
case. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006).
      Although Miles states that his sentence is unreasonable because the
reasons for the departure fail to advance the objectives of § 3553(a)(2), he argues
that it is unreasonable because it fails to advance the objectives of other
subsections of § 3553(a), specifically § 3553(a)(1), (a)(4)(A), and (a)(6). To the
extent he argues that the district court failed to consider these other factors and
that the district court erred in its application of § 4A1.3, these are procedural
errors that he did not preserve by objection or other argument in the district
court. See Gall, 552 U.S. at 51 (listing failure to consider the § 3553(a) factors
and improperly calculating the guidelines as procedural errors). Accordingly,
these arguments are reviewed for plain error. See Puckett v. United States, 129
S. Ct. 1423, 1428 (2009).
      The district court stated that it had considered the § 3553(a) factors in
selecting the 210-month sentence and addressed specifically the guidelines
range, its reasons and method of departing pursuant to § 4A1.3, and Miles’s
history and characteristics. Thus, Miles has not shown that the district court
erred, plainly or otherwise, by failing to consider the § 3553(a) factors. Nor has
Miles shown that the district court erred in determining that an upward
departure was warranted under § 4A1.3 or in applying the incremental approach
to the upward departure.
      Although the 210-month sentence was a substantial departure from the
100 to 125 month range calculated without the § 4A1.3 upward departure, the
facts of Miles’s case justify the extent of the upward departure. As described in
the presentence report (PSR) and considered by the district court, Miles has an
almost 20-year history of committing numerous crimes and of being in and out
of prison. Those crimes included numerous theft and credit card abuse offenses,
a drug offense, assault offenses, and an escape offense, for which Miles either

                                         2
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                                No. 09-11139

received or spent very little time in prison. This pattern of criminal behavior
escalated in July 2007 when he committed four bank robberies. Thus, the
upward departure is justified by the facts of Miles’s case. Additionally, the
record reflects that the district court reviewed Miles’s PSR, listened to his
attorney’s arguments at sentencing, considered the documents submitted in
support of Miles at sentencing, listened to Miles’s statements to the court, and
consulted the § 3553(a) factors. Moreover, the sentence imposed advances the
purposes of § 3553(a)(2), including the need to promote respect for the law, the
need for adequate deterrence, and the need to protect the public from future
crimes by Miles. Accordingly, Miles has not shown that the district court abused
its discretion by upwardly departing to the extent it did or that the 210-month
sentence is substantively unreasonable. See Zuniga-Peralta, 442 F.3d at 347.
      AFFIRMED.




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