* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-11202

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ALAN VAN DELAUGHTER

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:07-CR-94-ALL

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Alan Van DeLaughter was convicted by a jury of one count of mailing

threats to damage or destroy property and one count of mailing threatening

communications and was sentenced to two consecutive terms of 120 months in

prison. On appeal, DeLaughter argues that the district court erred by imposing

a sentence which was above the recommended Federal Sentencing Guidelines

range of 100 to 125 months.

United States Court of Appeals

Fifth Circuit

F I L E D

September 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-11202

2

The sentence imposed by the district court is typically reviewed for

reasonableness under an abuse-of-discretion standard. Gall v. United States,

128 S. Ct. 586, 591 (2007). The Supreme Court rejected the notion that the

district court needs extraordinary circumstances to justify a deviation from the

Guidelines range. See id. at 595. A district court, in sentencing, should use the

Guidelines range as “the starting point and the initial benchmark” but should

then consider all of the sentencing factors set forth in 18 U.S.C. § 3553(a). Id.

at 596. If the court concludes that a sentence outside the Guidelines is

warranted, it “must consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree of the variance.” Id.

at 597. “After settling on the appropriate sentence, [the sentencing court] must

adequately explain the chosen sentence to allow for meaningful appellate review

and to promote the perception of fair sentencing.” Id.

DeLaughter does not challenge the district court’s calculation of the

appropriate advisory Guidelines range or the factual recitation of his criminal

history. Although he challenges the district court’s conclusions, DeLaughter

does not assert that the district court did not specifically consider § 3553(a) in

imposing the departure. The record shows the district court considered these

factors, including DeLaughter’s history and characteristics, the need for

adequate deterrence, and the need to protect the public from future crimes by

DeLaughter. The district court relied on more than the mere number of offenses

that DeLaughter had committed and the other times he had been arrested. The

district court’s decision was based on the finding that DeLaughter’s history

contained repeated instances of threats against others and two additional

threats against federal district court judges, one of which pertained to the

current criminal conviction. Given the facts of this case and the district court’s

reasons for departing from the Guidelines range, DeLaughter has not shown

that the district court abused its discretion in imposing consecutive 120-month

sentences. See id.
No. 07-11202

3

DeLaughter argues thatthe district court was not required to provide him

notice before imposing an above-guidelines sentence, but should have done so

anyway. This court has held that the district court may sua sponte impose a

non-guideline sentence without advance notice to the defendant. United States

v. Mejia-Huerta, 480 F.3d 713, 722-23 (5th Cir. 2007), cert. denied, 128 S. Ct.

2954 (2008). The Supreme Court recently held the same in United States v.

Irizarry, 128 S. Ct. 2198, 2202-04 (2008).

DeLaughter’s sentence is AFFIRMED.