### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 60508 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. DWIGHT BOWLING , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:10

- CR

- 137

- 1

Before JONES, BENAVIDES, and GRAVES, Circuit Judges. PER CURIAM: * Dwight Bowling pleaded guilty to one count of obstruction of justice and two counts of transportation of a minor in interstate commerce with intent to engage in sexual activity . He challenges his 300

- month sentence, which was an upward variance from the applicable guidelines range. Bowl ing also argues that his trial counsel was i neffective on various grounds.

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 8, 2015 Lyle W. Cayce Clerk Case: 14-60508 Document: 00513109302 Page: 1 Date Filed: 07/08/2015No. 14

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2 Bowling asserts for the first time on appeal that the sentencing judge referred to Bible verses at the sentencing hearing and, therefore , the sentence

was impermissibly affected b y “ external influences ” and the judge’s religious beliefs

. If we assume, without deciding, that the Sixth Amendment prohibition against a jury being exposed to external influences applie s , Bowling has not shown that the district court’s sentencing decisio n was affected by outside factors or otherwise violated due process prohibitions against sentencing based
up on i mpermissible factors. See Zant v. Stephens , 462 U.S. 862, 885 (1983). The record reflects that the judge, rather than relying on his religious beliefs, referred to Bible verses, apparently from memory, in response to Bowling’s pervasive invocation of his religio n during his allocution; the judge sought to impart to Bowling that his conduct was contrary to his professed beliefs and underscore that he violated a well

- established principle that minors should be protected from harm. See United States v. Lemons , 94 1 F.2d 309, 320 (5th Cir. 1991). In any event, the record does not support that the judge sentenced Bowling more severely because of religio n . Instead, the judg e found that an upward variance was proper due to the heinous nature of Bowling’s c rime, which involved the long

- term sexual abuse of a minor and an attempt t o induce the minor to lie under oath to enable Bowling to evade prosecution. Bowling therefore has not shown plain error

. See Puckett v. United States , 556 U.S. 129, 135 (2009). Furthermore, Bowling maintains that his sentence was procedurally and subst antively unreasonable. He contends that the district court substantially varied from the guide lines range without presenting a sufficient justification. Bowling additionally argues that the district court gave significant weight to an irrelevant and impr oper factor, i.e., Bible verses. Bowling seemingly failed to preserve the specific arguments that he raises and, thus, plain error would Case: 14-60508 Document: 00513109302 Page: 2 Date Filed: 07/08/2015No. 14

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3 apply. See United States v. Tang , 718 F.3d 476, 482

- 83 (5th Cir. 2013). We do not resolve the applicable standard of review because Bowling’s arguments fail under the lesser abuse

- of

- discretion standard. See United States v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 2008). The record establishes that the district court adequately explained the decision to vary upwardly . T he district court, after providing Bowling and his counsel the opportunity to speak and considering the presentence report and applicable guidelines range , reasoned that a variance was appropriate based

on specific articulated 18 U.S.C. § 3553 (a) factors

. The district court also set forth case

- specific reasons that merited the variance; the district court noted the extreme nature of the offense and the fact that Bowling sought to conceal the crime by urging the minor to lie. Thus, the distric t court’s explanation was sufficient. See United States v. Diehl , 775 F .3d 714, 723

- 24 (5th Cir. 2015); United States v. Fraga , 70 4 F.3d 432, 439 (5th Cir. 2013). Likewise, the record supports that Bowling’s sentence was substantively reasonable. The dis trict court assessed the facts and arguments and cited case

specific reasons to support its finding that a within

- guidelines sentence would not achieve the sentencing goals set forth in § 3553(a). Also , the district court did not give excessive weight to an improper factor ; t he record does not support that the sentencing decision was based up on the Bible or the judge’s religious beliefs but rather on the nature of the offense and the need to pr otect the public

. See Fraga , 704 F.3d at 440. Although the va riance was significant, we have upheld similar or more substantial variations. See United States v. McElwee , 646 F.3d 328, 3 45 (5th Cir. 2011) (listing cases). Given the deference that is due to a district court’s consideration of the § 3553(a) factors, see Gall v. United States , 552 U.S. 38, 51 (2007) , and the district court’s reasons for its Case: 14-60508 Document: 00513109302 Page: 3 Date Filed: 07/08/2015No. 14

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4 sentencing decision, Bowling has not shown that the sentence is substantively unreasonable, see McElwee , 646 F.3d at 344

- 45

. Bowling did not assert his ineffective

- assistance claims in the district court. Accordingly, the instant record is not sufficiently developed to allow f or a fair consideration of the claims. See United States v. Isgar , 739 F.3d 829, 841 (5th Cir.), cert. denied , 135 S. Ct. 123 (2014). Accor dingly, the judgment of the district court is AFFIRMED. Case: 14-60508 Document: 00513109302 Page: 4 Date Filed: 07/08/2015