                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                     July 7, 2006
                         FOR THE FIFTH CIRCUIT
                                                                Charles R. Fulbruge III
                        ))))))))))))))))))))))))))                      Clerk

                              No. 05-30940

                        ))))))))))))))))))))))))))

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

versus

MICHAEL SCOTT CLEMENTS,


                                                     Defendant-Appellant.




             Appeal from the United States District Court
                 for the Western District of Louisiana
                        USDC No. 5:03-CR-50028-1




Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     After a jury convicted Appellant Michael Scott Clements of

conspiracy     to   commit   mail   fraud,    mail     fraud,     interstate

transportation of stolen motor vehicles, and money laundering, in

violation of 18 U.S.C. §§ 2, 371, 1341, 1957, and 2312, the district

court sentenced him to eighty-four months’ imprisonment, three years



     *
      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this opinion should not be published and is not precedent except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.
of supervised release, and $589,200 in restitution.              Clements now

appeals the reasonableness of his sentence.         For the reasons that

follow, we AFFIRM Clements’s sentence.

I.   BACKGROUND

     Clements   was   the   used   car   sales   manager    at   John   Harvey

Toyota/Lexus of Bossier City, Louisiana (“Harvey Toyota”).              Ricky

Pharr, Clements’s co-defendant, operated R&R Wholesale, a used car

wholesaler in Shreveport, Louisiana. Clements and Pharr devised and

executed a scheme to defraud Harvey Toyota by “selling” thirty-nine

Harvey Toyota vehicles to R&R Wholesale.1         After a jury convicted

Clements of conspiracy to commit mail fraud, mail fraud, interstate

transportation of stolen motor vehicles, and money laundering, the

district court incorrectly determined that Clements had a total

offense level of twenty-three and a criminal history category of

four, yielding a United States Sentencing Guidelines range of

seventy to eighty-seven months of imprisonment.            Consequently, the

court sentenced Clements to eighty-four months in prison, three

years of supervised release, and $589,200 in restitution.

     Clements timely appealed his sentence.            In an unpublished

decision, this Court vacated and remanded for re-sentencing upon



     1
      Pharr gave Clements blank drafts which Clements used as
evidence of vehicle sales.   Based on the purported sales, Harvey
Toyota would then pay various lien holders and financial
institutions in order to receive the vehicles’ titles. Pharr
then paid Clements by check in exchange for the return of the
drafts, the titles, and the cars.

                                     2
finding that the district court miscalculated Clements’s sentencing

range.   United States v. Clements, 145 F. App’x 33 (5th Cir. 2005).

     On remand, pursuant to this Court’s mandate, the district court

reduced Clements’s offense level to twenty-one, which yielded a

sentencing range of fifty-seven to seventy-one months imprisonment.

In open court, the judge stated:

           I’ve always felt that there are three reasons
           for sentencing: one is to punish, one is to
           separate the [dangerous] from society, and the
           third, and one that’s not given consideration
           anymore, is a message to the public at large.
           You know, you’re being punished, and you’re
           going to be punished regardless of whatever
           sentence I give. Deterrence, I’ll give you,
           you probably have learned your lesson; you’re
           probably not likely to do it again. But I’m
           left with what it says to society if you don’t
           get a substantial sentence but every teller
           making $1,000, $1,500 a month steals a lousy
           $1,000 and she gets a year and a half, two
           years, regardless of the reason for her [sic]
           stealing the money. And as I said, poor kids
           who never had a chance. You know, I guess we
           have gotten away from the idea that crimes
           against property are not important. Well, I
           disagree with that. Crimes against property
           are very important. And it’s like casting a
           rock in a pool: It affects everything. It’s
           going to affect people you don’t even know.
           The people at the Toyota place will never
           trust again anybody to the degree they trusted
           you, and there’s no way to get back at that.
           You can’t unring that bell.

           It is not the intent of this Court to poke a
           stick in the Fifth Circuit’s eye for reversing
           me. It is not the purpose of this Court to
           say “I told you so” in any way.        I have
           considered everything that you have just said,
           everything that has been written. I have--I
           believe you.      I believe Ms. Hudsmith.
           Nevertheless, it is the judgment of this Court


                                   3
           that the sentence that I imposed before is a
           correct one.2

Accordingly, the district court deviated from the Guidelines and

sentenced Clements to 84 months in prison, three years of supervised

release, and $589,200 in restitution.

      This appeal followed.

II.   DISCUSSION

      A.   The Sentencing Court Imposed a Non-Guideline Sentence.

      The threshold issue in this case is whether the sentencing

court imposed a non-Guideline sentence or a sentence involving an

upward departure from the Guidelines.3   While the Government argues

      2
      The sentencing court also contrasted Clements’s “well-to-
do family” background with that of other defendants “dealing in
pittances to support habits,” and observed that those defendants
are sent “away for 15 and 20 and even 30 years.”
      3
      This Court’s jurisprudence recognizes three different types
of sentences under the advisory Guidelines regime. United States
v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). First, in cases
where a sentencing court exercises its discretion to impose a
sentence within the properly calculated Guidelines range, we will
“infer that the judge has considered all the factors for a fair
sentence ..., and it will be rare for a reviewing court to say
such a sentence is ‘unreasonable.’” Id. at 706-07 (quoting
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
Second, a district court may impose a sentence that includes an
upward or downward departure as allowed by the Guidelines.    Id.
at 707. A sentence supported by a departure is also a “Guideline
sentence” because the court’s authority to depart derives from
the Guidelines themselves. Mares, 402 F.3d at 519 n.7. Finally,
a court may impose a non-Guideline sentence. Smith, 440 F.3d at
707. A non-Guideline sentence is one that is either higher or
lower than the relevant Guideline sentence but is not based on a
departure.   Id. Before imposing a non-Guideline sentence, a
sentencing court “is still required to calculate the guideline
range and consider it advisory.” United States v. Angeles-
Mendoza, 407 F.3d 742, 746 (5th Cir.2005) (emphasis in original).

                                 4
that Clements’s sentence is an upward departure from the Guidelines,

Clements contends that the district court imposed a non-Guideline

sentence.

      Clements’s sentence is a non-Guideline sentence.             In United

States v. Smith, this Court decided that the sentencing court

imposed a non-Guideline sentence because “[t]he court did not make

reference to upwardly departing or utilizing an enhancement, nor did

it refer to enhancement provisions of the Guidelines.”             440 F.3d

704, 708 n.3 (5th Cir. 2006).       First, like in Smith, the court did

not   make    reference    to   upwardly   departing    or     utilizing     an

enhancement, nor did it refer to enhancement provisions of the

Guidelines.     In addition, the Government’s assertion that the

district court could have upwardly departed pursuant to U.S.S.G. §

4A1.3 is meritless.       U.S.S.G. § 4A1.3 provides that “[i]f reliable

information indicates that the defendant’s criminal history category

substantially under-represents the seriousness of the defendant’s

criminal history or the likelihood that the defendant will commit

other crimes, an upward departure may be warranted.” U.S.S.G. §

4A1.3.    None of the district judge’s comments indicate that the

court sentenced Clements to eighty-four months imprisonment for that

reason.      Moreover,    the   district   court   expressly    stated     that

deterrence was not a factor.      Therefore, the district court imposed


Therefore, if the court decides to impose a non-Guideline
sentence, it should utilize the appropriate Guideline range as a
“frame of reference.”   Smith, 440 F.3d at 707.

                                      5
a non-Guideline sentence.

      B.      Clements’s Sentence is Reasonable.

      We review a non-Guideline sentence’s reasonableness for abuse

of discretion.      United States v. Reinhart, 442 F.3d 857, 862 (5th

Cir. 2006)(finding that this Court’s inquiry should be restricted

“to    determining     whether   the       trial   judge   overreached    the

discretionary sentencing authority afforded under Booker”).              Under

United States v. Booker, this Court ultimately reviews a sentence

for “unreasonableness.” 543 U.S. 220, 260 (2005). “Both a district

court’s post-Booker sentencing discretion and the reasonableness

inquiry on appeal must be guided by the sentencing considerations

set forth in 18 U.S.C. § 3553(a).”4           Smith, 440 F.3d at 706.     The


      4
          The section 3553(a) considerations include:
              (1) the nature and circumstances of the
              offense and the history and characteristics
              of the defendant;
              (2) the need for the sentence imposed
              (A) to reflect the seriousness of the
              offense, to promote respect for the law, and
              to provide just punishment for the offense;
              (B) to afford adequate deterrence to criminal
              conduct;
              (C) to protect the public from further crimes
              of the defendant; and
              (D) to provide the defendant with needed ...
              medical care, or other correctional treatment
              in the most effective manner;
              (3) the kinds of sentences available;
              (4) the kinds of sentence and the sentencing
              range established for
              (A) the applicable category of offense
              committed by the applicable category of
              defendant as set forth in the guidelines ...;
              (5) any pertinent policy statement ...;
              (6) the need to avoid unwarranted sentence

                                       6
sentencing court “must more thoroughly articulate its reasons when

it imposes a non-Guideline sentence than when it imposes a sentence

under authority of the Sentencing Guidelines.”      Id. at 707 (citing

United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)).             The

court’s explanation “should be fact specific and include, for

example,   aggravating    or   mitigating   circumstances    relating    to

personal characteristics of the defendant, his offense conduct, his

criminal history, relevant conduct or other facts specific to the

case at hand which led the court to conclude that the sentence

imposed was fair and reasonable.”       Mares, 402 F.3d at 519.         The

lower court, however, “need not engage in ‘robotic incantations that

each statutory factor has been considered.’”       Id.    (quoting United

States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005).

     In Smith, this Court agreed with the framework articulated by

the Eighth Circuit in assessing the reasonableness of a court’s

statutory support.       Smith, 440 F.3d at 708.         “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.”       Id. (citing United



          disparities among defendants with similar
          records who have been found guilty of similar
          conduct...
18 U.S.C. § 3553(a).

                                    7
States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005)).

     We conclude that Clements’s sentence reasonably reflects the

statutory sentencing factors.         The lower court’s emphasis on the

severity of crimes against property demonstrates the need for the

sentence to reflect the offense’s seriousness and to promote respect

for the law.       Additionally, the fact that the district court

discounted punishment and deterrence in its analysis demonstrates

that the court was guided by § 3553(a) considerations and engaged

in a fact-specific analysis of how the sentence would affect this

particular defendant.     Moreover, the district court’s comparison of

Clements’s offense to fraud committed by bank tellers and addicts

illustrates that the sentencing court considered the need to avoid

unwarranted sentence disparities among defendants with similar

records   who   have   been   found   guilty   of     similar   conduct.     By

juxtaposing     Clements’s    situation   to   that    of   bank   tellers   and

addicts, the judge focused on the nature and circumstances of the

offense and Clements’s own history and characteristics.               Finally,

the judge’s allusion to the effect of Clements’s offense on Harvey

Toyota, the victim, signifies the court’s emphasis on facts specific

to the case at hand, which led it to conclude that the sentence

imposed was fair and reasonable.       Hence, the district court did not

abuse its discretion because Clements’s sentence reasonably reflects

the statutory sentencing factors with the requisite thoroughness.




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III. CONCLUSION

     For the foregoing reasons, we AFFIRM Clements’s sentence.




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