     Case: 10-10778     Document: 00511569343         Page: 1     Date Filed: 08/11/2011




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

                                                                            FILED
                                                                          August 11, 2011
                                     No. 10-10778
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAMAL STEPHENS,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:08-CR-107-1
                             USDC No. 4:08-CR-161-1


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
        After he was implicated in a string of robberies occurring between April
and June 2008, Jamal Stephens pleaded guilty to two counts of bank robbery, in
violation of 18 U.S.C. § 2113(a), and he was sentenced to 240 months, pursuant
to significant departures under the Guidelines. On initial appeal, this court
determined that the district court’s guidelines calculations constituted
procedural error, vacating the judgment and remanding for resentencing. See


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-10778

United States v. Stephens, 373 F. App’x 457 (5th Cir. 2010). On remand, the
district court imposed a non-guidelines sentence of 240 months on each count of
conviction, to be served concurrently, determining that such a variance was
necessary under 18 U.S.C. § 3553(a) to reflect the nature and circumstances of
the offense and the need for the sentence to provide punishment, deterrence, and
protection to the public. Stephens now appeals the sentence imposed on remand
for resentencing.
      Relying on Justice Scalia’s concurring opinions in Rita v. United States,
551 U.S. 338, 368-84 (2007), and Gall v. United States, 552 U.S. 38, 60 (2007),
Stephens argues that his sentence violates his Sixth Amendment right to a jury
trial because, but for the district court judge’s finding that he possessed firearms
during several robberies, a fact which he has never admitted, it would not pass
muster under reasonableness review as set forth in the remedial opinion in
United States v. Booker, 543 U.S. 220 (2005). However, as the Government
contends, and Stephens apparently concedes, his as-applied Sixth Amendment
challenge is foreclosed. United States v. Hernandez, 633 F.3d 370, 374 (5th Cir.
2011) (footnote omitted), cert. denied, ___ S. Ct. ___ (June 13, 2011) (No. 10-
10440) (holding that “[i]rrespective of whether Supreme Court precedent has
foreclosed as-applied Sixth Amendment challenges to sentences within the
statutory maximum that are reasonable only if based on judge-found facts, such
challenges are foreclosed under [this court’s] precedent.”).
      Stephens next argues, for the first time, that his sentence is unreasonable
because the district court failed to consider the need to avoid unwarranted
sentencing disparities, as required by § 3553(a)(6). Citing statistics which
purport to show that defendants convicted of robbery in the Northern District
of Texas are more likely to receive sentences that vary or depart upward from
the guidelines range than defendants convicted of robbery elsewhere, Stephens
contends that the district court’s non-guidelines sentence subverts the purpose
of the Guidelines and of § 3553(a)(6).

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                                  No. 10-10778

      Because Stephens provides no information about the particular
aggravating or mitigating facts concerning any other robbery defendant, he has
failed to show that any sentencing disparity is unwarranted. See United States
v. Willingham, 497 F.3d 541, 544 (5th Cir. 2007) (“National averages of
sentences that provide no details underlying the sentences are unreliable to
determine unwarranted disparity because they do not reflect the enhancements
or adjustments for the aggravating or mitigating factors that distinguish
individual cases.”). Moreover, the district court specifically determined that the
instant case fell outside of the heartland of bank robbery cases, relying on
significant factors not accounted for in Stephens’s guidelines range.
Consequently, any disparity between the sentence he received and those
received by other defendants with his guidelines range was not unwarranted and
does not give rise to reversible plain error. See United States v. Smith, 440 F.3d
704, 709 (5th Cir. 2006); see also Puckett v. United States, 129 S. Ct. 1423, 1429
(2009).
      Stephens additionally contends that the extent of the variance in his case
was unreasonable because the court failed to adequately consider his youth and
lack of a criminal record. As he did below, he asserts that he is not “‘the worst
of the worst’” bank robbers, and he complains that varying upwardly to the
statutory maximum was excessive in his case given that he was a 19-year-old
first-time offender who engaged in a two-month robbery spree during which no
one was actually harmed.
      The district court tied the reasons for its sentence to specific facts and
particular § 3553(a) factors which were sufficient to justify the extent of the
variance. See Gall, 552 U.S. at 49-50. The court made an individualized
assessment and was free to conclude, as it did, that the guidelines range in
Stephens’s case gave insufficient weight to some of the sentencing factors,
including the seriousness of the offense, specifically his use of guns, the need to
protect the public from further crimes committed by Stephens in light of his

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                                  No. 10-10778

repeated bank robberies, and the need for deterrence. See § 3553(a). Stephens’s
argument is, in essence, a disagreement with the weight that the district court
gave to the relevant sentencing factors, particularly his criminal history, but this
disagreement does not amount to a showing that the court abused its discretion
in imposing his sentence. Cf. Smith, 440 F.3d at 708. To the extent that
Stephens seeks to have this court reweigh the § 3553(a) factors, his request is
unavailing. This court will not reweigh the § 3553(a) factors as that would
contravene the deferential review mandated by Gall. See Gall, 552 U.S. at 51
(directing appellate courts to “give due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the variance” and
stating that the fact this court might reasonably conclude that a different
sentence might be appropriate is insufficient to justify reversal).
      Although the variance in this case was significant, this court has upheld
as reasonable similarly significant variances. See United States v. Brantley,
537 F.3d 347, 348-50 (5th Cir. 2008); United States v. Jones, 444 F.3d 430, 433,
441-42 (5th Cir. 2006); United States v. Smith, 417 F.3d 483, 492-93 & n.40 (5th
Cir. 2005); United States v. Saldana, 427 F.3d 298, 312-13 (5th Cir. 2005);
United States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995). Stephens
has not shown that the sentence he received is substantively unreasonable.
Accordingly, the district court’s judgment is AFFIRMED.




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