United States v. Jerry Allen, Jr. , 398 F. App'x 93 ( 2010 )

Case: 10-10073 Document: 00511267088 Page: 1 Date Filed: 10/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 19, 2010
No. 10-10073
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY DAVID ALLEN, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 2:08-CR-40-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jerry Allen, Jr., appeals the 60-month sentence imposed following his jury
conviction on one count of aiding and abetting the making of threats against 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-10073 Document: 00511267088 Page: 2 Date Filed: 10/19/2010
No. 10-10073
President of the United States in violation of 18 U.S.C. §§ 2 and 871 and one
count of making threats against the President in violation of § 871. Allen con-
tends that the district court plainly erred when it increased his base offense level
pursuant to U.S.S.G. § 3A1.2(a) and (b). Because Allen did not object to the ap-
plication of § 3A1.2(a) and (b) in the district court, our review is limited to plain
error. See United States v. Alvarado-Santilano, 434 F.3d 794, 795 (5th Cir.
2005).
Section 3A1.2 instructs the district court to apply the greatest offense level
adjustment found in subsection (a), (b), or (c). The language of § 3A1.2 is plain
and unambiguous and does not appear to be subject to interpretation. Therefore,
the district court committed error that was clear or obvious when it enhanced Al-
len’s base offense level pursuant to § 3A1.2(a) and (b). See United States v. Leo-
nard, 157 F.3d 343, 345-46 (5th Cir. 1998) (finding plain error, even in the ab-
sence of controlling authority, where the pertinent guidelines were clear and un-
ambiguous).
Had the district court properly applied § 3A1.2, Allen’s guideline im-
prisonment range would have been 27-33 months instead of 37-46 months. The
district court, however, did not base its sentencing decision on the guideline
range. Instead, it imposed the statutory maximum term of imprisonment, a sen-
tence above even the top end of the erroneous range, while commenting on the
need to punish and deter Allen’s continued criminal activity. Allen cites to no
evidence in the record indicating that the court relied on the erroneous range or
would not have imposed the same sentence absent the error. Further, there is
substantial evidence supporting the upward variance. Because Allen has not
shown that the court could not impose the same sentence on remand or that
there is a reasonable probability that, but for the error, the sentence would have
been lower, Allen cannot show plain error. See United States v. Davis, 602 F.3d
643, 648-52 (5th Cir. 2010).
Allen also contends that the sentence is substantively unreasonable be-
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Case: 10-10073 Document: 00511267088 Page: 3 Date Filed: 10/19/2010
No. 10-10073
cause it is twice the correct guideline range and is based on a lengthy and exten-
sive mental health condition suffered as a result of his being repeatedly molested
as a child. Because Allen did not object to the reasonableness of his sentence af-
ter it was imposed, review is for plain error. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007).
Contrary to his contention, Allen’s disturbing personal history and mental
health problems were not the basis for the decision to vary upwardly to the stat-
utory maximum. The court’s explanation at sentencing and its statement of rea-
sons reflect that it based its decision on the § 3553(a) factors, including the na-
ture and circumstances of the offense of conviction, Allen’s history and character-
istics, and the need to provide just punishment and to deter Allen from further
criminal conduct.
Given the significant deference that is owed to a court’s consideration of
the § 3553(a) factors and the court’s reasons for the sentence, Allen has not
shown that the sentence was substantively unreasonable. See United States v.
Brantley, 537 F.3d 347, 349 (5th Cir. 2008). This court has affirmed, as reason-
able, variances similar to and greater than the increase in Allen’s sentence. See
id. at 348-50; United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir.
2008). Accordingly, the judgment of sentence is AFFIRMED.
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