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United States v. Deshan Spivey ( 2018 )


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  •      Case: 18-30226       Document: 00514720888         Page: 1     Date Filed: 11/13/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-30226                       November 13, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DESHAN SPIVEY,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:17-CR-214-1
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Deshan Spivey appeals the sentence imposed following his guilty-plea
conviction for making, uttering, and possessing a counterfeit security, in
violation of 18 U.S.C. § 513(a). He claims the above-Sentencing Guidelines
sentence of 30-months’ imprisonment is substantively unreasonable because it
was greater than necessary to satisfy the sentencing goals of 18 U.S.C.
§ 3553(a) (listing the “[f]actors to be considered in imposing a sentence”),
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-30226     Document: 00514720888      Page: 2   Date Filed: 11/13/2018
No. 18-30226
maintaining the district court imposed the sentence based solely on his
criminal history without properly accounting for other aspects of his history
and characteristics. (He does not challenge the extent (six months) of the
variance.)
Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States,
    552 U.S. 38
    , 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez,
    564 F.3d 750
    , 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez,
    517 F.3d 751
    , 764 (5th Cir. 2008). (As noted, Spivey does not claim
procedural error.)
The district court considered the advisory Guidelines range and the
statutory penalties, the § 3553(a) factors, Spivey’s criminal history, the facts
provided in his presentence investigation report, and his contentions in
mitigation of the sentence.     The court’s oral and written reasons for the
sentence variance were specific to § 3553(a)’s concerns and the facts of Spivey’s
history and characteristics.
Spivey does not show the court erred in balancing the § 3553(a) factors.
Instead, his assertions constitute an unavailing disagreement with the court’s
weighing of them. United States v. Heard,
    709 F.3d 413
    , 435 (5th Cir. 2013).
Given the totality of the circumstances and the significant deference due to the
district court’s consideration of the § 3553(a) factors, Spivey has not
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Case: 18-30226   Document: 00514720888     Page: 3   Date Filed: 11/13/2018
No. 18-30226
demonstrated the sentence is substantively unreasonable. Gall, 552 U.S. at
50–53; United States v. Brantley,
    537 F.3d 347
    , 349–50 (5th Cir. 2008).
AFFIRMED.
3