IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30350

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

AUGUST J. PHELPS, 

Defendant-Appellant 

Appeal from the United States District Court 

for the Middle District of Louisiana 

USDC No. 3:15-CR-4-1 

Before JONES, WIENER, and CLEMENT, Circuit Judges. 

PER CURIAM:*

 Defendant-Appellant August J. Phelps appeals the 16-month aboveguidelines sentence imposed in connection with his conviction for obstruction 

of correspondence. Phelps contends that the district court erred in denying a 

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. He also 

argues that his sentence is substantively unreasonable as an upward 

departure or an upward variance because the district court gave too much 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 6, 2016

Lyle W. Cayce

Clerk

 Case: 16-30350 Document: 00513786009 Page: 1 Date Filed: 12/06/2016
No. 16-30350

2 

weight to stale misdemeanor convictions. Though Phelps pleaded guilty 

pursuant to a plea agreement containing a waiver of appeal, the government 

does not seek enforcement of the appeal waiver. Thus, the waiver is not 

binding, and Phelps is not prevented from bringing this appeal. See United 

States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).

Section 3E1.1(a) of the Sentencing Guidelines directs the sentencing 

court to reduce a defendant’s offense level “[i]f the defendant clearly 

demonstrates acceptance of responsibility for his offense.” § 3E1.1(a). 

However, if a defendant fails to withdraw from criminal conduct or 

associations, the court may deny a reduction for acceptance of responsibility. 

§ 3E1.1, comment. (n.1(b)); United States v. Puckett, 505 F.3d 377, 387 (5th Cir. 

2007).

The presentence report recommended against a reduction under § 3E1.1 

based on information that Phelps violated the conditions of his pretrial 

supervision by receiving a misdemeanor summons for theft, failing to notify 

pretrial services of his contact with law enforcement, and failing to participate 

in substance abuse treatment. Additionally, Phelps made no attempt to 

communicate with his pretrial services officer, and when the officer was finally 

able to speak with Phelps, Phelps admitted that he had relapsed on illegal 

narcotics. Phelps made no argument and presented no evidence to dispute 

these allegations. Because the record supported the conclusion that Phelps 

had not withdrawn from criminal conduct, the district court’s denial of a 

reduction for acceptance of responsibility was not without foundation. See

United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008).

We review Phelps’s challenge to the substantive reasonableness of a 

sentence for abuse of discretion. United States v. Robinson, 741 F.3d 588, 598 

(5th Cir. 2015). Phelps fails to show that the above-guidelines sentence is 

 Case: 16-30350 Document: 00513786009 Page: 2 Date Filed: 12/06/2016
No. 16-30350

3 

unreasonable, either as a departure under U.S.S.G. § 4A1.3 or as a variance 

outside the guidelines system under 18 U.S.C. § 3553(a). See United States v. 

Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008). When imposing Phelps’s 

sentence, the district court assessed the facts and provided specific reasons 

consistent with the § 3553(a) factors to support its determination that a 

sentence outside of the guidelines range was necessary to achieve the goals of 

sentencing. The district court noted that only one of Phelps’s prior convictions 

was counted in calculating his criminal history category. Further, Phelps had 

four bench warrants at the time of his arrest. Under the totality of the 

circumstances, including the significant deference that is given to the district 

court’s consideration of the § 3553(a) factors and the district court’s reasons for 

its sentencing decision, Phelps fails to show that the district court erred in 

imposing his 16-month above-guidelines sentence. See United States v. 

Gerezano-Rosales, 692 F.3d 393, 400-01 (5th Cir. 2012).

The judgment of the district court is AFFIRMED. 

 Case: 16-30350 Document: 00513786009 Page: 3 Date Filed: 12/06/2016