IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10313

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

GARY WAYNE SIDES,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:09-CR-134-1

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

*

Gary Wayne Sides appeals his 36-month sentence, imposed following his

guilty-plea conviction for uttering counterfeit obligations of the United States,

in violation of 18 U.S.C. § 472. He contends: the district court erred by

departing upwardly from his advisory Sentencing Guidelines sentencing range

of 18 to 24 months; and, his sentence is unreasonable.

Although, post-Booker, the Guidelines are advisory only, and a sentence

is reviewed for reasonableness under an abuse-of-discretion standard, the

United States Court of Appeals

Fifth Circuit

F I L E D

April 4, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-10313

district court must still properly calculate the sentencing range for use in

deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 50-51

(2007). In that respect, its application of the Guidelines is reviewed de novo; its

factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,

517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359

(5th Cir. 2005). Our court first examines whether the district court committed

any significant procedural error. Gall, 552 U.S. at 51. (Sides does not contend

his sentence is procedurally unreasonable.) We next “consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard”.

Id.

A district court’s decision to depart from the advisory sentencing range,

and the extent of that departure, is reviewed for abuse of discretion. E.g., United

States v. Newsom, 508 F.3d 731, 733-34 (5th Cir. 2007) (citation omitted). The

district court concluded that Sides’ criminal-history category substantially

under-represented the seriousness of his criminal history, the likelihood that he

would recidivate, and the need to protect the public. See U.S.S.G. § 4A1.3(a)(1)

(“If reliable information indicates . . . defendants’s criminal history category

substantially under-represents the seriousness of [his] criminal history or the

likelihood that [he] will commit other crimes, an upward departure may be

warranted.”); United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006)

(upward departure not abuse of discretion if district court’s reasons for departing

advance 18 U.S.C. § 3553(a)(2) objectives and are justified by facts of the case);

United States v. Simkanin, 420 F.3d 397, 418 & n. 24 (5th Cir. 2005) (affirming

upward departure based upon likelihood of recidivism). Two convictions and six

arrests not resulting in convictions were unaccounted for by Sides’ criminalhistory category. See U.S.S.G. § 4A1.3(a)(2)(A) & (E) (information that may be

considered in forming basis for an upward departure includes “[p]rior sentence(s)

not used in computing the criminal history category” and “[p]rior similar adult

criminal conduct not resulting in a criminal conviction”). Given Sides’ extensive

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No. 10-10313

criminal record, which includes other offenses designed to deprive rightful

owners of their property, as well as violent assaults, the court did not abuse its

discretion by departing upwardly.

In regard to the substantive reasonableness of the sentence, the district

court cited fact-specific reasons for imposing a non-Guidelines sentence, and its

reasons for imposing an upward departure adequately reflected the 18 U.S.C.

§ 3553(a) sentencing factors. See United States v. Tzep-Mejia, 461 F.3d 522, 527

(5th Cir. 2006). Along that line, our court has previously upheld comparable,

and even greater, departures than Sides’. See Zuniga-Peralta, 442 F.3d at 346-

48 (upholding 27-month upward departure based on defendant’s extensive

criminal history); United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004)

(upholding 24-month upward departure in the light of defendant’s 21 criminalhistory points, prior lenient sentences received, and likelihood of recidivism);

United States v. McKenzie, 991 F.2d 203, 205 n.7, 206 n.8 (5th Cir. 1993) (ruling

27-month departure, roughly twice Guidelines maximum, was reasonable in the

light of defendant’s serious criminal history).

AFFIRMED.

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