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United States v. Benjamin Mason , 583 F. App'x 381 ( 2014 )


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  •      Case: 14-10067      Document: 00512817586         Page: 1    Date Filed: 10/28/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-10067
Fifth Circuit
FILED
Summary Calendar                       October 28, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
BENJAMIN MASON, Also Known as Chi,
Defendant−Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 4:13-CR-77
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Benjamin Mason appeals the 240-month sentence for his guilty-plea
conviction of bank robbery. The sentence is an upward departure from the
guideline range pursuant to U.S.S.G. § 4A1.3 or an upward variance pursuant
to
    18 U.S.C. § 3553
    (a). Mason complains that the sentence is substantively
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10067    Document: 00512817586      Page: 2   Date Filed: 10/28/2014
No. 14-10067
unreasonable because the district court disregarded the sentencing disparity
between him and his fellow bank robbers, afforded excessive weight to his crim-
inal history, and failed properly to consider his acceptance of responsibility.
We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse-of-discretion standard. Gall v. United States,
    552 U.S. 38
    , 49−51 (2007). The record confirms that the district court listened
to counsel’s arguments and made an individualized assessment based on
Mason’s personal history and characteristics; the seriousness of the underlying
offense; and the need to promote respect for the law, to provide just punish-
ment, to afford adequate deterrence, and to protect the public.          See id.;
§ 3553(a)(1), (2). Mason’s challenge is no more than a disagreement with the
district court’s balancing of the § 3553(a) factors, an analysis that that court
was in a better position to perform than are we and to which we accord great
deference. United States v. Hernandez,
    633 F.3d 370
    , 375 (5th Cir. 2011).
Mason has not shown that the decision to sentence him above the advisory
range was “a clear error of judgment in balancing the sentencing factors.”
United States v. Smith,
    440 F.3d 704
    , 708 (5th Cir. 2006).
As for the increase to 240 months from the 188-month top of the range,
this court has upheld variances and departures greater than this increase. See
United States v. Brantley,
    537 F.3d 347
    , 348−50 (5th Cir. 2008); United States
v. Jones,
    444 F.3d 430
    , 433, 441−42 (5th Cir. 2006). The district court acted
within its discretion. See Hernandez,
    633 F.3d at 375
    .
The judgment of sentence is AFFIRMED. Mason’s pro se motion for sub-
stitution of counsel is DENIED because, inter alia, it was filed after counsel’s
brief and is thus untimely. Cf. United States v. Wagner,
    158 F.3d 901
    , 902−03
(5th Cir. 1998). To the extent that Mason complains that his appointed counsel
was ineffective, that matter is not appropriate to be addressed on direct appeal.
2