     Case: 19-60081      Document: 00515133679         Page: 1    Date Filed: 09/26/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                    No. 19-60081                         FILED
                                  Summary Calendar               September 26, 2019
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANGELA MAXINE LEE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:18-CR-153-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Angela Maxine Lee appeals the 84-month sentence imposed after she
pleaded guilty to possessing a firearm after being convicted of a felony. Lee
contends that the sentence, which was above the 46-month advisory maximum,
was substantively unreasonable because the district court gave too much
weight to the fact that she had twice absconded from probation and because
the court erred in balancing the sentencing factors of 18 U.S.C. § 3553(a).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-60081    Document: 00515133679      Page: 2   Date Filed: 09/26/2019


                                  No. 19-60081

      We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007).           Substantive
reasonableness is determined under the totality of the circumstances in
reference to the § 3553(a) factors. See United States v. Brantley, 537 F.3d 347,
349 (5th Cir. 2008). A sentence is substantively unreasonable if “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.
Chandler, 732 F.3d 434, 437 (5th Cir. 2013) (internal quotation marks and
citation omitted).    Relevant § 3553(a) factors include “the nature and
circumstances of the offense and the history and characteristics of the
defendant,” and the need “to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense,” as well as
to deter criminal conduct and “to protect the public from further crimes of the
defendant.” § 3553(a)(1) & (2).
      Although the Government and the probation officer agreed at sentencing
that a sentence within the guideline range was appropriate, the district court
disagreed and questioned the parties and the probation officer at length as to
why they believed a within-guideline sentence was proper.             The court
ultimately expressed its view that the Sentencing Guidelines did not
adequately take into consideration the two times that Lee absconded from
probation, and that she was “on the lam” when arrested. The court was also
troubled by Lee’s lack of employment history and her extensive history of
illegal drug abuse that led to her frequent homelessness. The court further
noted that Lee’s prior state sentences and previous “state court mercy” had not
deterred her criminal conduct.     The court further cited the “necessity for
restraint” before concluding that Lee lacked the “capacity for rehabilitation.”



                                       2
    Case: 19-60081    Document: 00515133679     Page: 3   Date Filed: 09/26/2019


                                 No. 19-60081

      The reasons given by the district court pertain to relevant § 3553(a)
factors, specifically Lee’s history and characteristics as well as deterrence and
the need to protect the public. See § 3553(a)(2). We have affirmed similar or
greater variances. See United States v. Smith, 440 F.3d 704, 708-10 (5th Cir.
2006) (affirming a 60-month sentence above a 27-month guideline range); cf.
also Brantley, 537 F.3d at 348-50 (upholding an upward variance to 180
months from an advisory maximum of 51 months); United States v. Herrera-
Garduna, 519 F.3d 526, 531-32 (5th Cir. 2008) (collecting cases and affirming
a 60-month sentence where the guideline maximum was 27 months).
      Even if we “might reasonably have concluded that a different sentence
was appropriate,” we “give due deference to the district court’s decision that
the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 552
U.S. at 51. In light of the required deference, we cannot say that the sentence
is substantively unreasonable.      See id.     Accordingly, the judgment is
AFFIRMED.




                                       3
