IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-31113

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CHARLES R. YOUNG,

Defendant-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:09-CR-9-1

Before JOLLY, WIENER, and ELROD, Circuit Judges.

PER CURIAM:

*

Defendant-Appellant Charles R. Young appeals his 137-month sentence

imposed following his guilty plea to possession with intent to distribute five

grams or more of cocaine base. The district court departed upward

incrementally from criminal history category II to category VI, which resulted

in a guideline range of 110 to 137 months. Young argues that his sentence is

procedurally and substantively unreasonable.

United States Court of Appeals

Fifth Circuit

F I L E D

June 22, 2010

Lyle W. Cayce

Clerk

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.

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No. 09-31113

Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we engage in a

bifurcated analysis of the sentence imposed. United States v. Delgado-Martinez,

564 F.3d 750, 752 (5th Cir. 2009). Our first query is whether the district court

committed a “significant procedural error,” such as miscalculating the advisory

guidelines range. Id. at 751-53. If the district court’s decision is procedurally

sound, we then consider “the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard . . . tak[ing] into account the

totality of the circumstances.” Gall, 552 U.S. at 51. In exercising this bifurcated

process, we review the district court’s application of the Guidelines de novo and

its factual findings for clear error. United States v. Jeffries, 587 F.3d 690, 692

(5th Cir. 2009).

Young asserts that his sentence is procedurally unreasonable because the

court’s decision to depart upward resulted from its mistaken belief that it had

no authority to account for the sentencing disparities between crack cocaine and

powder cocaine. As Young raised the issue in the district court, he has preserved

the issue for review. Young’s assertion, however, is belied by the record. In

addressing Young’s objection to the calculation of his base offense level, the

district court correctly observed that the appropriate base offense level was the

one set forth in the United States Sentencing Guidelines and that the court’s

hands were tied as far as the base offense level calculation went. At no point did

the district court indicate a belief that it had no authority to impose a lower

guideline sentence if it chose to do so. Morever, it is clear from the record that

the district court’s decision to upwardly depart was based on Young’s extensive

criminal history, the likelihood of recidivism, and the need to protect the public.

Young maintains that the district court committed a second procedural

error by basing its decision to depart upward almost exclusively on his arrest

record. Because Young did not raise this issue in the district court, our review

is for plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

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The consideration of prior arrests, without more, is specifically prohibited

by the Guidelines as a ground for an upward departure. U.S.S.G. § 4A1.3(a)(3);

United States v. Jones, 444 F.3d 430, 434 (5th Cir. 2006). The record indicates,

however, that the district court’s statements regarding Young’s arrests were

merely a part of the court’s recitation of Young’s lengthy and often violent

criminal history and its determination that his criminal history category was

underrepresented. It is apparent from the record that the departure was based

on more than the mere fact of Young’s arrests.

Even if it is assumed that Young’s arrest record was a factor in the district

court’s decision to depart upward, the court imposed an alternative sentence of

137 months as a variant sentence. Under a variant sentence, consideration of

the defendant’s arrest record is not foreclosed by § 4A1.3. See United States v.

Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). The district court committed

no procedural error.

Young next contends that his 137-month sentence is substantively

unreasonable. A sentence that results from a guideline-authorized upward

departure, as is the case here, is considered to be a guideline sentence. See

United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006). Reasonableness

review, in the context of a guidelines departure, requires us to evaluate both “the

district court’s decision to depart upwardly and the extent of that departure for

abuse of discretion.” United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.

2006) (internal quotation marks and citation omitted). Because Young did not

object to the substantive unreasonableness on the grounds that he advances on

appeal, however, our review is for plain error. See United States v. Peltier, 505

F.3d 389, 390-92 (5th Cir. 2007).

The district court gave lengthy, detailed reasons for its departure, noting

the seriousness of Young’s offense, the seriousness of his involvement in the drug

trafficking culture in general, his violent criminal history, the need to promote

respect for the law, and the need to protect the public from future crimes. See

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United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Young’s disagreement

with the district court’s assessment of his sentence is insufficient to show that

it is unreasonable. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.

2006).

AFFIRMED.

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