IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30849

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

IVORY C. MYLES, also known as Ivory C. Miles,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:17-CR-241-1

Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Ivory C. Myles pleaded guilty to one count of interference with commerce 

by robbery and one count of use of a firearm during a crime of violence. He 

now appeals his 360-month, above-guidelines sentence. The district court 

upwardly departed pursuant to U.S.S.G. § 4A1.3, after determining that 

Myles’s criminal history category of VI substantially under-represented the 

seriousness of his criminal history and the likelihood that he would reoffend. 

* 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 17, 2020

Lyle W. Cayce

Clerk

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No. 19-30849

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On appeal, Myles argues that district court abused its discretion when 

it imposed an upward departure under § 4A1.3. The brief is imprecise about 

the exact nature of the challenge; however, the framework of his argument 

suggests that he is arguing that the above-guidelines sentence is substantively

unreasonable. Here, the district court stated that departure was necessary to 

afford adequate deterrence to criminal conduct and protect the public from 

further crimes of the defendant. In light of Myles’s extensive criminal history, 

which included numerous convictions that received no criminal history points, 

the district court did not abuse its discretion by upwardly departing because 

its reasons for doing so advance the objectives of 18 U.S.C. § 3553(a)(2) and are 

justified by the facts of the case. See United States v. Zuniga-Peralta, 442 F.3d

345, 347-48 (5th Cir. 2006). 

Myles further argues that his sentence should be reversed, even if his 

above-guidelines sentence is considered a variance. An upward variance is 

substantively unreasonable if it fails to reflect the § 3553(a) sentencing factors 

in that it: “(1) does not account for a factor that should have received significant 

weight, (2) gives significant weight to an irrelevant or improper factor, or 

(3) represents a clear error of judgment in balancing the sentencing factors.” 

United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). The district court 

did not err by considering Myles’s criminal history in imposing an upward 

variance. See id. at 708-09. Further, the district court reasonably could have 

concluded that the facts of the instant offense warranted a variance, even if 

some were taken into account by the guidelines range. See, e.g., United States 

v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). Thus, Myles has not 

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shown that the district court abused its discretion in imposing an upward 

variance. See Smith, 440 F.3d at 708.

Accordingly, the judgment is AFFIRMED.

 

 Case: 19-30849 Document: 00515494189 Page: 3 Date Filed: 07/17/2020