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United States v. Green ( 2023 )


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  • Case: 22-10739        Document: 00516670307             Page: 1      Date Filed: 03/08/2023
United States Court of Appeals
for the Fifth Circuit
____________                              United States Court of Appeals
Fifth Circuit
FILED
No. 22-10739                                March 8, 2023
Summary Calendar
____________                                 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
James Earl Green, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:20-CR-70-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
James Earl Green, Jr., was convicted of attempted bank robbery.
During sentencing, the district court varied upward from the United States
Sentencing Guideline range and sentenced Green to 180 months
imprisonment. Green filed a timely notice of appeal.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10739      Document: 00516670307          Page: 2   Date Filed: 03/08/2023
No. 22-10739
Green contests the substantive reasonableness of his sentence. This
court reviews “an appellant’s claim that [a] sentence is unreasonable for
abuse of discretion. This review is highly deferential, because the sentencing
court is in a better position to find facts and judge their import under the
§ 3553(a) factors with respect to a particular defendant.” United States v.
Hernandez,
    876 F.3d 161
    , 166 (5th Cir. 2017) (internal citations and
quotations omitted).
The district court must “impose a sentence sufficient, but not greater
than necessary, to accomplish the goals of sentencing, including to reflect the
seriousness of the offense, to promote respect for the law, to provide just
punishment for the offense, to afford adequate deterrence to criminal
conduct, and to protect the public from further crimes of the defendant.”
Kimbrough v. United States,
    552 U.S. 85
    , 101 (2007) (internal quotations
omitted) (citing
    18 U.S.C. § 3553
    (a)).
    18 U.S.C. § 3553
    (a) also requires the
district court to consider “the nature and circumstances of the offense and
the history and characteristics of the defendant.”         “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.”
United States v. Smith,
    440 F.3d 704
    , 707 (5th Cir. 2006).
Green contends the sentence was unreasonable because the district
court failed to consider his age at the time he committed earlier, unscored
offenses; the gap between his last offense and the instant crime; and his
current age. The district court thoroughly explained why the relevant
§ 3553(a) factors supported Green’s sentences, including his significant and
lengthy criminal history, the failure of prior sentences to deter him from
criminal conduct, and the violent circumstances of the instant attempted
bank robbery. Thus, Green’s “claim amounts to a request that we reweigh
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Case: 22-10739     Document: 00516670307          Page: 3   Date Filed: 03/08/2023
No. 22-10739
the sentencing factors and substitute our judgment for that of the district
court, which we will not do.” United States v. Hinojosa-Almance,
    977 F.3d 407
    , 412 (5th Cir. 2020) (internal quotations omitted). His challenge to the
degree of the variance is likewise unavailing. See United States v. Brantley,
    537 F.3d 347
    , 350 (5th Cir. 2008).
AFFIRMED.
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