United States v. Wesley , 235 F. App'x 329 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-51233 F I L E D
Summary Calendar August 15, 2007
Charles R. Fulbruge III
UNITED STATES OF AMERICA Clerk
Plaintiff-Appellee
v.
TYRONE DAVID WESLEY
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CR-78-ALL
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tyrone David Wesley appeals the sentence imposed following his guilty
plea to possession with intent to distribute five grams or more of cocaine base.
The district court sentenced Wesley to 120 months of imprisonment and four
years of supervised release.
Wesley asserts that the district court erred in assessing two criminal
history points for his 1999 domestic violence conviction. As Wesley concedes,
this issue will be reviewed for plain error only. To demonstrate plain error, the
*
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should not be published and is not precedent except under the limited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.
No. 06-51233
defendant bears the burden of showing that (1) there is an error, (2) the error is
plain, and (3) the error affects substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). If these conditions are satisfied, this court has the
discretion to correct the error only if it “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” Id. (internal quotation marks and
citation omitted).
The record does not demonstrate a lack of representation for Wesley’s 1999
domestic violence conviction. Wesley has not sustained his burden to show that
his 1999 domestic violence conviction was constitutionally invalid. See United
States v. Osborne, 68 F.3d 94, 100 (5th Cir. 1995); see also United States v. Vital,
68 F.3d 114, 120 (5th Cir. 1995). Accordingly, Wesley has not shown plain error
in the assessment of two criminal history points for his 1999 domestic violence
conviction.
Wesley also asserts that the 120-month sentence was an abuse of
discretion and unreasonable. Based on an offense level of 25 and a criminal
history category of IV, Wesley’s advisory guidelines range was 84 to 105 months
of imprisonment. The district court determined that pursuant to U.S.S.G.
§ 4A1.3 and 18 U.S.C. § 3553(a), both an upward departure and a variance were
warranted. Using an offense level of 25 and a criminal history category of V, the
district court sentenced Wesley to 120 months of imprisonment. An upward
departure is reviewed for an abuse of discretion. United States v. Smith, 440
F.3d 704, 707 (5th Cir. 2006). A non-guidelines sentence is reviewed for
reasonableness. Id. at 706.
The district court upwardly departed under § 4A1.3, finding that Wesley’s
criminal history category under-represented the seriousness of his criminal
history. The district court also considered the factors in § 3553(a), such as the
need to protect the public from further crimes of the defendant. The district
court’s reasons for departing advance the objectives of § 3553(a) and are justified
by the facts of the case. See United States v. Zuniga-Peralta, 442 F.3d 345, 347
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No. 06-51233
(5th Cir.), cert. denied, 126 S. Ct. 2954 (2006). The district court’s decision to
depart and the extent of the departure were not an abuse of discretion. See id.Wesley further contends that his sentence is unreasonable because the
district court failed to consider and address certain mitigating circumstances.
The district court properly considered the § 3553(a) factors in determining
Wesley’s sentence. Because the district court did not fail to account for a factor
which should have received significant weight, give significant weight to an
improper factor, or make a clear error of judgment in balancing sentencing
factors, Wesley’s sentence is reasonable. See Smith, 440 F.3d at 707-09.
Accordingly, the district court’s judgment is AFFIRMED.
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