United States v. Andre Saunders , 672 F. App'x 479 ( 2017 )


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  •      Case: 16-10379      Document: 00513828759         Page: 1    Date Filed: 01/10/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-10379                                FILED
    Summary Calendar                        January 10, 2017
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    ANDRE HUGH SAUNDERS, also known as David Turner,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:15-CR-240-1
    Before KING, DENNIS, and COSTA, Circuit Judges.
    PER CURIAM: *
    Andre Hugh Saunders appeals his above-guidelines 78-month sentence
    imposed following his guilty plea to one count of mail fraud. He argues that
    his sentence is substantively unreasonable because the district court
    erroneously determined that the guidelines enhancement for vulnerable
    victims did not sufficiently take into account the multiple victims and the
    serious harm caused to them by the fraudulent scheme.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10379    Document: 00513828759     Page: 2   Date Filed: 01/10/2017
    No. 16-10379
    Generally, this court will “consider the substantive reasonableness of the
    sentence imposed under an abuse-of-discretion standard.”        Gall v. United
    States, 
    552 U.S. 38
    , 51 (2007). However, Saunders did not challenge in the
    district court the above-guidelines sentence based on the district court’s
    reliance on the vulnerability of the victims. Therefore, review of this issue is
    for plain error. See United States v. Mondragon-Santiago, 
    564 F.3d 357
    361
    (5th Cir. 2009).
    A non-guidelines sentence is unreasonable if 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. Chandler, 
    732 F.3d 434
    , 437 (5th Cir. 2013) (internal quotation marks and citation omitted).
    A district court has the discretion to determine “that the applicable Guidelines
    range gives too much or too little weight to one or more factors” and may
    determine that a guidelines sentence “is not lengthy enough to serve the
    objectives of sentencing.” United States v. Williams, 
    517 F.3d 801
    , 809 (5th
    Cir. 2008). In making its decision to vary upward, the district court considered
    that Saunders defrauded several elderly and sick individuals of large sums of
    money that resulted in a substantial financial hardship for at least two of the
    victims and that Saunders threatened the livelihood of one of the victims to
    obtain additional funds. It also considered that Saunders shared the lists of
    vulnerable victims with others, creating a further threat to public safety.
    Based on these considerations and the 18 U.S.C. § 3553(a) factors, the district
    court properly determined that the two-level enhancement for a vulnerable
    victim did not sufficiently take into account the multiple victims and
    circumstances in this case. The district court did not commit plain error in
    giving significant weight to the vulnerability of the victims, a consideration
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    Case: 16-10379     Document: 00513828759      Page: 3    Date Filed: 01/10/2017
    No. 16-10379
    that advanced the objectives of § 3553(a).        See 
    Gall, 552 U.S. at 49-51
    ;
    
    Chandler, 732 F.3d at 437
    ; 
    Williams, 517 F.3d at 810-11
    .
    Saunders argues that the degree of the departure should be evaluated
    and that the upward variance of more than two years above the top of the
    guidelines range was unreasonable under the totality of the circumstances.
    In considering the substantive reasonableness of a sentence, the court
    considers “the totality of the circumstances, including the extent of any
    deviation from the Guidelines range, while affording due deference to the
    district court’s decision that the § 3553(a) factors, on a whole, justify the extent
    of the variance.” United States v. McElwee, 
    646 F.3d 328
    , 337 (5th Cir. 2011)
    (internal quotations and citation omitted). In varying upward, the district
    court considered the vulnerability of the four victims along with the § 3553(a)
    factors of deterrence, promoting safety and respect for the law, and the need
    for a just punishment. The 27-month variance was “commensurate with the
    individualized, case-specific reasons provided by the district court” and did not
    reflect an abuse of discretion. 
    McElwee, 646 F.3d at 338
    (internal quotations
    and citation omitted). Based on the totality of the circumstances, and giving
    deference to the district court’s determination that the § 3553(a) factors
    warranted the extent of the variance, the sentence was substantively
    reasonable. See 
    id. at 337.
          The sentence is AFFIRMED.
    3
    

Document Info

Docket Number: 16-10379

Citation Numbers: 672 F. App'x 479

Filed Date: 1/10/2017

Precedential Status: Non-Precedential

Modified Date: 1/13/2023