IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60612

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MAURICE HAMMOND,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:08-CR-131-1

Before REAVLEY, JOLLY, and OWEN, Circuit Judges.

PER CURIAM:

*

Following a jury trial, Maurice Hammond was convicted of one count of

submitting a false claim to the Federal Emergency Management Agency

(FEMA); one count of making a false statement to FEMA; one count of making

a false statement to the Small Business Administration; one count of theft of

public money; and four counts of wire fraud. These charges all arose from

Hammond’s false representations that he lived at a certain house before

Hurricane Katrina and the claims he made for federal funds to aid in repairing

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. 09-60612

the home. The district court sentenced him to serve 30 months in prison as well

as three years on supervised release, and Hammond’s prison term was the result

of an upward variance from the applicable guidelines range. We are now

presented with Hammond’s appeal from his convictions and sentence.

The first claim raised by Hammond is that the district court erred by

denying his motion for a new trial. According to Hammond, this denial was

erroneous because the evidence showed that he lived at the subject property

when Hurricane Katrina made landfall and that he thus committed no crime.

He complains that the Government’s evidence was all circumstantial and insists

that his evidence proved his innocence. These arguments are unavailing.

This court reviews the denial of a motion for a new trial for “a clear abuse

of discretion.” United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir.

2008), cert. denied, 129 S. Ct. 247 (2008). The district court did not clearly abuse

its discretion by denying Hammond’s motion, as the evidence introduced at trial

sufficed to show that Hammond did not live at the disputed property when the

hurricane struck. Insofar as he argues that the Government’s case against him

was lacking because it was grounded in circumstantial evidence, this contention

lacks merit. Cf. United States v. Cihak, 137 F.3d 252, 261 (5th Cir. 1998).

Although the jury was presented with evidence to support Hammond’s defense,

the jury was not required to believe his version of events. See United States v.

Garcia, 995 F.2d 556, 561 (5th Cir. 1993). Hammond has not shown that the

evidence heavily weighs against the jury’s verdict and thus has not shown that

the district court erred by denying his motion for new trial. See

Ramos-Cardenas, 524 F.3d at 605. His remaining claims likewise fail.

Hammond insists that the district court reversibly erred by refusing to

give his requested jury instruction on the definition of residency. Our review of

the record and the pertinent standards rebuts this assertion and reveals no

abuse of discretion in connection with the challenged ruling, which was

grounded in the district court’s determination that the jurors could rely on their

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common sense with respect to the meaning of the term residence. See United

States v. Anderson, 560 F.3d 275, 279 (5th Cir. 2009); see also United States v.

Anderton, 629 F.2d 1044, 1048-49 (5th Cir. 1980).

The next claim presented by Hammond is that the district court erred by

denying his request for discovery so that he could ascertain the identity of the

person who started the investigation against him. The main flaw in this

argument is that a close examination of Hammond’s discovery motion shows

that, although he requested discovery on numerous topics, he did not specifically

ask for the name of the individual who started the investigation. Further, his

conclusional, speculative allegations of investigatory bias have no record

support. Hammond has shown no abuse of discretion in connection with the

district court’s evidentiary rulings. See United States v. Stephens, 571 F.3d 401,

409 (5th Cir. 2009).

Hammond presents several challenges to his sentence. 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 there is no such error or the error is harmless, we proceed to the

second step and consider the substantive reasonableness ofthe sentence imposed

for an abuse of discretion. Id.; see also United States v. Cisneros-Gutierrez, 517

F.3d 751, 764 (5th Cir. 2008).

The first sentencing claim raised by Hammond, that the district court

acted improperly by not giving advance notice of its intent to impose a sentence

above the pertinent guidelines range, fails because no such notice is required

when, as is the case here, the sentence is the result of a variance. See Irizarry

v. United States, 128 S. Ct. 2198, 2202-04 (2008). Contrary to Hammond’s

arguments, the district court’s loss calculations were in accordance with the

Guidelines and are not clearly erroneous. See United States v. Taylor, 582 F.3d

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558, 564 (5th Cir. 2009). There is also no clear error with respect to the

sentencing judge’s imposition of an enhancement for obstruction of justice, which

was based on a finding that Hammond perjured himself. See United States v.

Brown, 470 F.3d 1091, 1093 (5th Cir. 2006).

Under Hammond’s view, the sentencing variance imposed by the district

court is erroneous because it is based on a factor, abuse of public trust, that is

already taken into consideration by another guideline and which is not

applicable in the instant case. This view is not supported by the record, which

shows that the district court’s choice of sentence was grounded in considerations

of deterrence, as well as Hammond’s own history and characteristics. These are

proper sentencing factors, and the district court did not commit a significant

procedural error by weighing them when deciding how to sentence Hammond.

See 18 U.S.C. § 3553. Finally, Hammond has failed to show that his sentence

creates an unwarranted disparity. See United States v. Sanchez-Ramirez, 497

F.3d 531, 536 n.4 (5th Cir. 2007).

The judgment of the district court is AFFIRMED.

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