* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30956

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

LARRY ANDREW COX

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:06-CR-20130-1

Before REAVLEY, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

Larry Andrew Cox appeals the sentence imposed following his guilty plea

conviction of sexual abuse of a minor who was over twelve years of age but less

than 16 years of age, in violation of 18 U.S.C. § 2243(a)(1). Cox argues that the

district court abused its discretion by imposing an unreasonable sentence of 76

months of imprisonment, more than three times the upper end of the guidelines

range of 18 to 24 months of imprisonment.

United States Court of Appeals

Fifth Circuit

F I L E D

November 18, 2008

Charles R. Fulbruge III

Clerk
No. 07-30956

2

The Government argues that Cox did not present this issue in the district

court and therefore plain error review governs this appeal. We need not

determine whether Cox forfeited the issue because the judgment withstands

scrutiny even under the abuse-of-discretion standard. See United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

As Cox has not argued that procedural error exists, see id., this court

considers the substantive reasonableness of the sentence under the abuse-ofdiscretion standard. See id.; United States v. Brantley, 537 F.3d 347, 349 (5th

Cir. 2008). The district court properly used the unchallenged guidelines range

as the starting point and initial benchmark. See United States v. Gall, 128 S. Ct.

586, 596 (2007). The district court then properly considered the sentencing

factors of § 3553(a), explaining in detail why the guidelines range was

insufficient. See id. While the district court indicated that the sentence could

be either an upward departure or a variance, because the following analysis

shows that Cox’s sentence is reasonable under the totality of the relevant

statutory factors, the specific characterization is irrelevant. See Brantley, 537

F.3d at 349.

After conducting an extensive review of the presentence report’s

unchallenged facts, the district court determined that the sentencing factors of

§ 3553(a) required a sentence outside of the guidelines range. The district court

cited the nature and circumstances of the offense and the history and

characteristics of the defendant, the need for the sentence to reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense, the need for the sentence to afford adequate

deterrence to criminal conduct, and the need for the sentence to protect the

public from further crimes of the defendant. See § 3553(a)(1), (a)(2)(A)-(C). The

district court made specific findings regarding why the guidelines range was

inadequate in light of these § 3553(a) factors, including that the 13-year-old

victim was vulnerable, the crime occurred on a military base, and Cox had
No. 07-30956

3

exposed himself to an 18-year-old on a military base. The district court

determined that Cox’s history revealed a pattern of predatory conduct and a

sentence within the guidelines range was inadequate to serve as a deterrent and

protect others from Cox.

In light ofthe district court’s findings, Cox’s arguments are not persuasive.

Exceptional circumstances are not needed to justify a departure. Gall, 128 S. Ct.

at 596; United States v. Williams, 517 F.3d 801, 811 (5th Cir. 2008). The district

court explained in detail why the guidelines sentence was insufficient. Finally,

Cox’s sentence of 76 months of imprisonment is less than half the statutorily

authorized sentence of 15 years of imprisonment, and the extent of the variance

is consistent with other sentences that this court has affirmed. See § 2243(a);

Brantley, 537 F.3d at 348-50; United States v. Smith, 440 F.3d 704, 708 n.5,

709-10 (5th Cir. 2006); United States v. Jones, 444 F.3d 430, 433 (5th Cir. 2006).

In light of the record and the deference that this court affords to the

district court’s findings, the district court did not abuse its discretion by

concluding that a 76-month sentence was reasonably necessary to achieve the

objectives of § 3553(a). See Williams, 517 F.3d at 812-13.

The judgment of the district court is AFFIRMED.