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. Bowling also argues 

that his trial counsel was ineffective on various grounds.

 

* 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

July 8, 2015

Lyle W. Cayce

Clerk

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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 by “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 applies, Bowling has not 

shown that the district court’s sentencing decision was affected by outside

factors or otherwise violated due process prohibitions against sentencing based 

upon impermissible 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 religion 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, 941 F.2d 309, 320 (5th Cir. 

1991). In any event, the record does not support that the judge sentenced 

Bowling more severely because of religion. Instead, the judge found that an 

upward variance was proper due to the heinous nature of Bowling’s crime, 

which involved the long-term sexual abuse of a minor and an attempt to 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 

substantively unreasonable. He contends that the district court substantially 

varied from the guidelines range without presenting a sufficient justification. 

Bowling additionally argues that the district court gave significant weight to 

an irrelevant and improper factor, i.e., Bible verses. Bowling seemingly failed 

to preserve the specific arguments that he raises and, thus, plain error would 

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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. The 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 district court’s explanation was 

sufficient. See United States v. Diehl, 775 F.3d 714, 723-24 (5th Cir. 2015); 

United States v. Fraga, 704 F.3d 432, 439 (5th Cir. 2013).

Likewise, the record supports that Bowling’s sentence was substantively 

reasonable. The district court assessed the facts and arguments and cited casespecific 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; the record does not support 

that the sentencing decision was based upon the Bible or the judge’s religious 

beliefs but rather on the nature of the offense and the need to protect the 

public. See Fraga, 704 F.3d at 440. Although the variance was significant, we 

have upheld similar or more substantial variations. See United States v.

McElwee, 646 F.3d 328, 345 (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 

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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 for 

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).

Accordingly, the judgment of the district court is AFFIRMED.

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