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. 09-30767

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GARRETT M. RUSHING,

Defendant-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:08-CR-95-1

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Garrett M. Rushing pleaded guilty to possession with intent to distribute

methamphetamine and use of a firearm during a drug trafficking crime,

pursuant to 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1)(A). The guidelines

sentencing range was 92 to 115 months for the methamphetamine offense and

60 months for the firearm offense. The district court determined that an upward

variance from the guidelines range was appropriate and imposed consecutive

sentences of 135 and 72 months, respectively.

United States Court of Appeals

Fifth Circuit

F I L E D

June 9, 2010

Lyle W. Cayce

Clerk

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No. 09-30767

2

Rushing challenges the district court’s reasons for the sentences as

insufficient. Because he did not object on this basis in the district court, we

review the issue for plain error. See United States v. Whitelaw, 580 F.3d 256,

258, 261-62 (5th Cir. 2009). Rushing confuses the upward variance imposed by

the district court with an upward departure under U.S.S.G. § 4A1.3. He asserts

that the district court’s explanation was insufficient because it did not show that

the court applied the procedure required by § 4A1.3(a)(4)(B) and because the

court relied on his arrest record in violation of § 4A1.3(a)(3). We distinguish

between an upward departure allowed under the guidelines and a non-guidelines

sentence, or variance, that is outside of the guidelines range. United States v.

Brantley, 537 F.3d 347, 349 (5th Cir. 2008). The district court stated that it was

imposing an upward variance. As such, it was permitted to rely on Rushing’s

arrest record, supported by additional evidence of criminal conduct (including

Rushing's “six or seven” convictions as well as the violent and drug-related

nature of the charges underlying his prior arrests), in imposing the aboveguidelines sentence. See United States v. Lopez-Velasquez, 526 F.3d 804, 807

(5th Cir.), cert. denied, 129 S. Ct. 625 (2008). The provisions of § 4A1.3 did not

apply, and the district court did not err by failing to show that it complied with

those provisions. See United States v. Smith, 440 F.3d 704, 706–08 (5th

Cir. 2006). 

Next Rushing contends that the district court erred by relying on elements

of the offense to impose the above-guidelines sentence. The appellant’s brief

must contain his “contentions and the reasons for them, with citations to the

authorities and parts of the record on which [he] relies.” FED. R. APP.

P. 28(a)(9)(A). Rushing abandons this argument by failing to offer any legal

support for it. See id.; United States v. Stalnaker, 571 F.3d 428, 439–40 (5th Cir.

2009).

Rushing also asserts that the district court’s reasons were not factually

specific or detailed enough to allow review by this court. The district court

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provided a lengthy explanation for the upward variance that included factspecific reasons such as Rushing’s “six or seven” prior convictions, 25 arrests,

history of narcotics distribution and physical violence, and the violence involved

in the instant offense. It cited aggravating circumstances not accounted for by

the guidelines, including a separate robbery committed by Rushing on the night

of the instant offenses, his possession of firearms as a convicted felon, his fleeing

to Wyoming after the instant offenses, and his failure to provide officials with

the source of methamphetamine he purchased. The district court referenced the

sentencing factors under § 3553(a) and explained that the variance was

necessary to protect society and deter future crimes. The court acknowledged

Rushing’s argument that his troubled background was a mitigating factor but

rejected it because Rushing had “ample opportunities” as an adult to change but

failed to do so. Accordingly, we find no error, plain or otherwise, with the

reasons provided by the district court. See Smith, 440 F.3d at 708; United States

v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). 

We do not consider Rushing’s remaining argument that the consecutive

sentences imposed by the district court were disproportionate to his offenses and

unsupported by the record. Although Rushing states that this court should use

the sentencing factors under 18 U.S.C. § 3553(a) as a guide in reviewing the

reasonableness of his sentences, he does not explain why the sentences were

excessive under those factors, dispute the factors relied on by the district court,

or cite to the record. By failing to brief the issue sufficiently, he waives it. See

FED. R. APP. P. 28(a)(9)(A); Stalnaker, 571 F.3d at 439–40.

AFFIRMED.

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