United States v. Drayon Conley ( 2018 )

Case: 17-11357 Document: 00514706601 Page: 1 Date Filed: 11/01/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-11357 November 1, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DRAYON CONLEY,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-4-1
Before STEWART, Chief Judge, and OWEN and OLDHAM, Circuit Judges.
PER CURIAM: *
Drayon Conley challenges the 75-month above-guidelines prison term
imposed at resentencing, arguing that the variance sentence is substantively
unreasonable. In particular, he observes that his initial 96-month prison term
represented a 25-month upward variance from the top of his prior advisory
sentencing guidelines range; his 75-month prison term represented a 38-month
variance from the top of his new, lower range; and no conduct had occurred
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11357 Document: 00514706601 Page: 2 Date Filed: 11/01/2018
No. 17-11357
between his first and second sentencing hearings that warranted such a severe
variance given that his criminal history remained unchanged. Although
Conley acknowledges his three disciplinary citations while in prison, he
contends that two of the three were not of a serious nature. He also notes his
many accomplishments in prison.
The substantive reasonableness of a sentence is reviewed for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The record
demonstrates that, at resentencing, the district court used the new, lower
guidelines range as its starting point and made an individualized assessment
that a 75-month prison term was sufficient but not greater than necessary to
comply with the purposes set forth in 18 U.S.C. § 3553(a)(2). See id. at 49-51.
Further, the court gave a “thorough justification” for its above-guidelines
sentence, and the extent of the court’s variance is within the range of variances
that we have previously upheld. United States v. McElwee, 646 F.3d 328, 344
(5th Cir. 2011). Disagreement with the district court’s balancing of the
sentencing factors “is not a sufficient ground for reversal.” United States v.
Malone, 828 F.3d 331, 342 (5th Cir. 2016). Based on the totality of the
circumstances, including the deference owed to a district court’s consideration
of the § 3553(a) factors, the district court did not abuse its discretion. See Gall,
552 U.S. at 50-53; McElwee, 646 F.3d at 344-45.
AFFIRMED.
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