United States Court of Appeals 

for the Fifth Circuit 

No. 21-30092 

Summary Calendar 

United States of America, 

Plaintiff—Appellee, 

versus

Gerard Lawless, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Eastern District of Louisiana 

USDC No. 2:19-CR-50-1 

Before Owen, Chief Judge, and Southwick and Wilson, Circuit

Judges.

Per Curiam:*

Gerard Lawless appeals his above-guidelines sentence of 81 months of 

imprisonment imposed by the district court following his guilty plea to one 

count of being a felon in possession of a firearm in violation of 18 U.S.C. 

*

 Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

December 27, 2021 

Lyle W. Cayce 

Clerk 

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2 

§§ 922(g)(1) and 924(a)(2). Lawless challenges the district court’s 

imposition of an upward departure under U.S.S.G. § 4A1.3(a)(1) and the 

district court’s denial of a downward variance. 

In reviewing an upward departure, we evaluate both “the district 

court’s decision to depart upwardly and the extent of that departure for abuse 

of discretion.” United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 

2006) (internal quotation marks and citation omitted). Likewise, we review 

a district court’s denial of a downward variance for abuse of discretion. 

United States v. Douglas, 957 F.3d 602, 609 (5th Cir. 2020). 

The district court did not abuse its discretion in imposing an upward 

departure under § 4A1.3(a)(1). The record shows that the district court 

expressly determined that Lawless’s initial guidelines range of 46 to 57 

months of imprisonment underrepresented the seriousness of Lawless’s 

criminal history or his likelihood of recidivism. See U.S.S.G. § 4A1.3(a)(1), 

p.s. The district court detailed at sentencing Lawless’s multiple prior 

convictions and offenses committed while under parole supervision as the 

basis for its decision to impose the upward departure under § 4A1.3(a)(1). 

The upward departure was justified, as the district court found that (1) the 

instant offense was Lawless’s third firearm-related offense; (2) Lawless had 

numerous felony convictions, including those for firearm-related offenses 

and drug-related offenses; (3) Lawless committed the instant offense, as well 

as some of his prior offenses, while under parole supervision; (4) Lawless had 

an extensive criminal history that started when he was 17 years old and 

continued to commit offenses throughout his adult life; and (5) considering 

Lawless’s extensive and continuous criminal history and commission of 

offenses while under parole supervision, Lawless’s likelihood of recidivism 

was great. Furthermore, the district court’s reasons for departing advance 

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

case. See Zuniga-Peralta, 442 F.3d at 347-48. 

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As to Lawless’s contention that the district court abused its discretion 

by denying him a downward variance, nothing suggests that the district court 

failed to consider a factor that should have received significant weight, gave 

significant weight to an improper factor, or made a clear error of judgment in 

balancing the sentencing factors. See United States v. Smith, 440 F.3d 704, 

708 (5th Cir. 2006). The record shows that the district court did consider 

Lawless’s argument for a downward variance, along with his personal history 

and characteristics, and nevertheless concluded that the seriousness of the 

instant offense, Lawless’s history and characteristics, the need for adequate 

deterrence, and the need to protect the public from Lawless’s further crimes 

warranted the denial of Lawless’s request for a downward variance. We give 

deference to the district court’s sentencing decision based on the § 3553(a) 

factors. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). 

Lawless’s disagreement with the balancing of the factors is not a sufficient 

basis for reversal. See Douglas, 957 F.3d at 609-10. Lawless has not 

demonstrated that the district court abused its discretion and imposed a 

substantively unreasonable sentence. See Gall v. United States, 552 U.S. 38, 

51 (2007). 

The judgment of the district court is AFFIRMED. 

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