# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 51200

**United States of America,** Plaintiff

— Appellee **,**

versus **Derrick Deshon Collins,** Defendant

— Appellant

**.**

Appeal from the United States District Court for the Western District of Texas USDC No. 7:21

- CR

- 144

- 1

Before **King, Stewart,** and **Haynes,** Circuit Judges

**. Per Curiam**  **:** *
Derrick Deshon Collins appeals the district court’s judgment imposing a within

- g uidelines 188

- month sentence following his guilty plea conviction s
. Because the district court did not abuse its discretion in imposing Collins’ s sentence, w e **AFFIRM**

.

* This opinion is not designated fo r publication. See **5th Cir**

**. R** 

**.** 47.5. United States Court of Appeals Fifth Circuit 

### FILED December 8, 2022 Lyle W. Cayce Clerk Case: 21-51200 Document: 00516571237 Page: 1 Date Filed: 12/08/2022No. 21

- 51200

2 I. F ACTUAL & P ROCEDURAL B ACKGROUND In July 2021, Collins pled guilty , without a plea agreement, to possession of cocaine base or “crack” with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and possession of a firearm in furtherance of a drug trafficking crime in violation of 1 8 U.S.C. § 924(c)(1)

. According to the presenten ce investigation report (PSR) , Collins’s total offense level was 29 based on a base offense level of 32 and three

- level reduction for acceptance of responsibility. C ollins had eight scored convictions and committed the i nstant offense while under a crimina l justice sentence for a Texas offense

. Consequently, h e received a criminal history score of 20 and a criminal history cat egory of VI . At least 1 4 of Collins’s convictions did not receive criminal history points. The se c alculations yielded a guidelines range of 151 to 188 months in prison for the drug conviction and a mandatory minimum sentence of 60 months in prison on the gun c onviction

. The Government filed a sentencing memorandum informing the district court that the EQUAL Act of 2021 (the Act), 1 which would eliminate the sentencing disparity between powder

- cocaine and crack

- cocaine in 21 U.S.C. § 841 and 21 U.S.C. § 960, was pending before Congress . It st ated that the Department of Justice support ed the pass age of the Act and indicated that the district court could consider the existing sentencing disparity when sentencing Collins. In spite of its position supporting the Act , the Government nevertheless re quested that the district court impose a guidelines sentence in light of the 18 U.S.C. § 3553(a) factors and Collins’s extensive criminal history. Collins also filed a sentencing memorandum, urging the district court
to apply the powder

- cocaine guideline to avoid any sentencing disparity ,

1 H.R. 1693, 117th Cong. (2021). Case: 21-51200 Document: 00516571237 Page: 2 Date Filed: 12/08/2022No. 21

- 51200

3 noting that his guidelines range would be 77 to 96 months under that more lenient guideline. A t sentencing, Collins reiterated his objection to the drug quantity calculation, which the district court overruled . He also r equested a sentence at the low end of the guidelines range, pledging to “do better” after he is released from prison. In response, the district court emphasized that Collins scored in the highest criminal history category based on his lengthy criminal history, which included convictions for robbery, delivery of controlled substances, aggravated assault, theft, obstruction, and possession of cocaine . It also pointed out that Collins had numerous convictions that were not scored. The district cou rt then announced that it was imposing a guidelines sentence based on the Sentencing Reform Act of 1984, which it considered to be advisory, and it s consideration of the 18 U.S.C. § 3553(a) sentencing factors. It acknowledged that the Government supported the passage of the EQUAL Act but stated that after considering Collins’s serious and extensive criminal history, which it considered to be underrepresented, a guidelines sentence was warranted on the drug charge. It construed Collins’s sentencing memorandu m as a motion for a downward departure and denied the motion

. It ultimately imposed a sentence of 188 months’ imprisonment for the drug count and 60 months’ imprisonment for the firearm count to run consecutively. It also imposed a three

- year supervised re lease term on the drug count and a five

- year supervised release term on the gun count, to run concurrently. Colli ns filed this appeal arguing that his 188

- month sentence on the drug count was substantively unreasonable.
II. S TANDARD OF R EVIEW This court generally reviews “the substantive reasonableness of the sentence imposed under an abuse

- of

- discretion standard.” See Gall v. United States , 552 U.S. 38, 51 (2007). Here, Collins preserved his challenge to the Case: 21-51200 Document: 00516571237 Page: 3 Date Filed: 12/08/2022No. 21

- 51200

4 substantive reasonableness of his senten ce by requesting a downward variance. See Holguin

- Hernandez v. United States , 140 S. Ct. 762, 766

– 67 (2020) ( “ A defendant who, by advocating for a particular sentence, communicates to the trial judge his view that a longer sentence is ‘ greater than necessa ry ’ has thereby informed the court of the legal error at issue in an appellate challenge to the substantive reasonableness of the sentence. ” )

. I I I. D ISCUSSION On appeal, Collins contends that the 188

- month within

- guidelines sentence is substantively unreasonable because it overstated the seriousness of his offense, gave undue weight to his criminal history, and failed to consider the sentencing disparity between the crack

- cocaine and pow d er
cocaine guidelin es. We disagree. “[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. ” Gall , 552 U.S. at 49. The n, “ after giving both parties an opportunity to argue for whatever sentence they deem appropri ate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party .” Id . at 49

– 50. The district court “ shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of § 3553(a)(2). 18 U.S.C. § 3553(a). “ This court applies a rebuttable presumption of reasonableness to a properly calculated, within

guidelines sentence

. ” United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). A defendant can rebut t his presumption by “showing that the sentence does not account for a factor that should receive significant weight, Case: 21-51200 Document: 00516571237 Page: 4 Date Filed: 12/08/2022No. 21

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5 it gives significant weight to an irrelevant or improper factor, or it represent s a clear error of judgment in balancing sentencing factors.” Id

. 2 Here, t he district court determined that , in light of the nature and circumstances of the instant offense and Collins’s history and characteristics, a within

- guidelines sentence was nece ssary to achieve the sentencing goals set forth in § 3553(a). Although the district court specifically acknowledged that the EQUAL Act was pending and that the Government had endorsed its passage , it also expressed its concern with Collins’s extensive crim inal history, which it found to be underrepresented given his uncharged criminal conduct. 3 See United States v. Smith , 440 F.3d 704, 709 (5th Cir. 2006) (noting that the district court may consider the defendant’s criminal history and unscored convictions when imposing a sentence)

. Collins’s disagreement with the propriety of his sentence and the district court’s weighing of the § 3553(a) factors does not suffice to rebut the presumption of reasonableness that attaches to his within

- guidelines s entence. See United States v. Ruiz , 621 F.3d 390, 398 (5th Cir. 2010) ( “ A defendant ’ s

2 Although Collins contends that the presumption is not applicable here because the crack

- cocaine guideline lacks an empirical basis, he concedes that this court has held that the presumption applies regardless of whether the Sentencing Guidelines have an

em pirical basis. See United States v. Lara , 23 F.4th 459, 485

– 86 (5th Cir. 2022); see also United States v. Miller , 665 F.3d 114, 119 (5th Cir. 2011) (“ [T] here is a rebuttable presumption that a sentence within the applicable advisory Guidelines range is rea sonable, even if the applicable Guideline is not empirically based

. ”). Consequently, t he presumption of reasonableness applies in this case.

3 Indeed, a review of Collins’s PSR reveals his dense and lengthy twenty

- plus year criminal history that include s numerous unscored and scored convictions for a variety of offenses . As the district court observed upon reviewing Collins’s criminal history, “ Wow. So it looks to me like this goes back to 1995 when you were 18 years old. And that’s pretty much what you’ ve done, whether it’s robbery or selling cocaine or aggravated assault, theft, terroristic threats, theft, obstruction, possession of cocaine, obstruction, tampering with evidence, evading, possession of marijuana, delivery of controlled substance

. . . It appears to me, if I were to say, what was this guy’s profession, I’d say, well, he’s a criminal. ” Case: 21-51200 Document: 00516571237 Page: 5 Date Filed: 12/08/2022No. 21

- 51200

6 disagreement with the propriety of the sentence imposed does not suffice to rebut the presumption of reasonableness that attaches to a within

- guidelines
sentence. ” ). Acco rdingly, Collins has not shown that the district court erred in balancing the sentencing factors, and thus, he has failed to rebut the presumption that his within

- guidelines sentence is reasonable . See Cooks , 589 F.3d at 186. As a result, Collins has fail ed to demonstrate that the district court abused its discretion by imposing the 188

- month sentence for the drug
count

. See id.
I V

. C ONCLUSION For the foregoing reasons, the district court’s judgment is **AFFIRMED**

. Case: 21-51200 Document: 00516571237 Page: 6 Date Filed: 12/08/2022